D 


UC-NRLF 


REPORT 


OF  THE 


Employers'  Liability 
Commission 

OF  THE  STATE  OF  JLLINOIS  - 


INITIAL  MEETING,  MARCH  24,  1910 
FINAL  MEETING,  SEPTEMBER  15,  1910 


GIFT  OF 

Prof.    Ira    3.    Cress 


DOCUMENTS 


REPORT 

of 

-    :- 


Employers'  Liability 
Commission 

of  the 
STATE    OF    ILLINOIS 


INITIAL   MEETING,   MARCH  24,  1910 
FINAL  MEETING,  SEPTEMBER  15,  1910 


PRESS  or 

STROMBERG.    ALLEN 
CHICAGO 


TOPICAL  INDEX  OF  REPORT 


Page 

Financial  Statement  of  Expenses  Incurred  by  Commission 4 

Act  Creating-  the  Commission 5 

Introduction , 7 

Report  to  Governor  Deneen 15 

Attorney  Harper's  Preliminary  Report 39 

Attorney's  Final  lleport 51 

The  Legal  Record 74 

Opinions  of  Members  of  the  Bar 81 

Coal  Mining- 117 

Railroads  (Steam) 148 

Elevated  and  Electric  Roads 162 

Manufacturers 167 

Metal  Trades 179 

Carpenters  and  Builders 180 

Coroner's  Record 183 

Compensation  through  Lawsuit 194 

What  Becomes  of  the  Injured  Workman? 201 

The  County  Agent  of  Cook  County 201 

The  Cook  County  Hospital 203 

Eye  and  Ear  Infirmary,  Chicago 207 

State  Factory  Inspection 209 

Reports  from  American  Consuls 214 

Trade  Unions 217 

Bureau  of  Labor  Statistics 237 

Comparative  Analysis  of  Insurance  and  Compensation  Plans 247 

Responsibility  for  Accidents 249 


699381 


CHARLES    PIEZ.   CHA.RMAN  EDWIN    R.   WRIGHT.    SECRETARY 

EMPLOYERS'  LIABILITY  COMMISSION 
OF  THE  STATE  OF  ILLINOIS 

317      FISHER      BUILDING 

TELEPHONE     HARRISON     6253 

CHICAGO 

W.  J.  JACKSON.  CHICAGO  PATRICK    CARR.    LADD 

E    T     BENT.    CHICAGO  GEORGE    GOLDEN.    CHICAGO 

M.   J.    BOYLE.    CHICAGO 


CHARLES    Piez     CHICAGO  -     i  DANIEL   J.   GORMAN.    PEORIA 

ROBERT   E.  CONWAY.  EAST  ST.  Louis  JOHN    FLORA.    CHICAGO 

MABON    B     STARRING     CHICAGO  EDWIN    R.WRIGHT.   CHICAGO 


September  15, 1910. 
MR.  CHARLES  PIEZ,  Chairman, 
Employers'  Liability  Commission, 

Chicago. 
Dear  Sir: 

In  closing  up  the  routine  work  of  the  Commission,  I  wish  to 
present  you  herewith  an  analysis  of  bills  authorized  by  the  Com- 
mission. Each  item  has  been  properly  audited  and  certified  to  and 
forwarded  to  the  Department  and  Institution  Auditor  of  the  State. 

The  records  contain  the  following  appropriations: 

Printing,  $1,282.40 

Legal  services,  1,000.00 

Office  expenses,  -  768.61 

Reporting  meetings  and  stenographic  services,                1,707.23 

Clerical  expenses,  620.10 

Per  diem,  1,815.50 

Hotel  and  traveling  expenses,       -                                         2,728.93 

Total,      -  $9,922.77 

Respectfully, 


Secretary. 


ACT     CREATING 
THE   COMMISSION 

nnnn 


EMPLOYERS'  LIABILITY  COMMISSION. 


§1. 

§2. 

§3. 


Creates    commission   of   twelve 

members. 
Appointment  and  classification 

of     members  —  chairman  —  va- 

cancies —  quorum. 
Duties  —  report    to    Governor  — 

publication. 


§4.  Meetings  —  records  —  employes 
— per  diem — expenses. 

§5.  Appropriates  $10,000.00— print- 
ing. 

§6.     Emergency. 


House  Bill  No.  42.     Approved  March  4,  1910. 


An  Act  to  create  an  Employers'  Liability  Commission  and  making  an  ap- 
propriation therefor. 

Section  1.  Be  it  enacted  by  the  people  of  the  State  of  Illinois  represented 
in  the  General  Assembly:  That  a  commission  of  twelve  (12)  members  is 
hereby  created  to  be  known  as  the  Employers'  Liability  Commission,  to  be 
constituted  and  appointed  as  hereinafter  provided. 

Sec.  2.  The  Governor  shall  appoint  within  twenty  days  after  this 
Act  takes  effect,  as  members  of  said  Commission,  who  shall  be  citizens  of 
Illinois,  six  employers  of  labor  and  six  persons  who  are  either  employes 
or  are  known  to  represent  the  interests  of  workmen.  The  Commission  shall 
elect  the  chairman  of  said  Commission  and  shall  have  the  power  to  fill  any 
vacancy  that  may  occur  in  its  membership:  Provided,  however,  the  vacancy 
shall  be  filled  by  a  person  of  the  same  qualifications  as  the  person  whose 
vacancy  he  fills.  The  majority  of  the  members  of  the  said  Commission  shall 
constitute  a  quorum. 

Sec.  3.  Said  Commission  shall  investigate  the  problems  of  industrial 
accidents,  and  especially  the  present  condition  of  the  law  of  liability  for 
injuries  or  death  suffered  in  the  course  of  industrial  employment,  as  well 
in  this  State  as  in  other  States  or  countries,  and  shall  inquire  into  the  most 
equitable  and  effectual  method  of  providing  for  compensation  for  losses  suf- 
fered as  aforesaid.  It  shall,  as  far  as  practical,  co-operate  with  other  Com- 
missions appointed  in  other  States  for  like  purposes.  It  shall  on  or  before 
the  15th  day  of  September,  1910,  report  its  conclusions,  together  with  the 
draft  of  such  bill  or  bills  as  may  be  deemed  appropriate,  to  the  Governor, 
who  shall  at  once  publish  such  reports  and  drafts  of  bill  or  bills,  and  shall 
also  transmit  such  report  to  the  Forty-seventh  General  Assembly  for  action 


EMPLOYERS'  LIABILITY  COMMISSION 


thereon:  Provided,  That  such  Commission  shall  report  to  the  Governor  only 
such  recommendations  as  shall  have  been  agreed  upon  by  a  majority  of  that 
part  of  the  Commission  representing  the  employers  of  labor  and  a  majority 
of  that  part  of  the  Commission  representing  the  interests  of  the  workingmen. 

Sec.  4.  The  Commission  shall  meet  at  the  call  of  the  chairman  and  elect 
a  secretary  from  among  its  members.  It  shall  cause  a  record  to  be  made  and 
kept  of  its  proceedings.  It  shall  have  power  to  employ  such  clerks  and  assist- 
ants MS  may  be  necessary,  and  shall  fix  their  compensation,  and  may  incur  such 
other  expenses  as  are  properly  incidental  to  the  work  of  the  Commission.  The 
members  of  the  Commission  shall  be  reimbursed  at  the  rate  of  five  dollars 
($5.00)  per  diem  while  actually  engaged  on  the  work  of  such  Commission, 
and  reimbursed  for  their  actual  expenses  incurred  in  the  work  of  said  Com- 
mission. 

Sec.  5.  The  sum  of  ten  thousand  dollars  ($10,000.00),  or  as  much  thereof 
as  may  be  necessary,  is  hereby  appropriated  for  the  expenses  of  the  Commis- 
sion, and  the  Auditor  of  Public  Accounts  is  hereby  authorized  to  draw  his 
warrant  for  the  foregoing  amount,  or  any  part  thereof,  in  payment  of  any 
expenses,  charges  or  disbursements  authorized  by  this  Act  on  order  of  the 
Commission,  signed  by  its  chairman,  attested  by  its  secretary  and  approved 
by  the  Governor. 

The  State  Board  of  Contracts  is  hereby  authorized  and  directed  to  pro- 
vide all  necessary  printing  for  said  Commission. 

Sec.  6.  Whereas,  An  emergency  exists,  therefore,  this  Act  shall  be  in 
force  and  effect  immediately  after  its  passage  and  approval  by  the  Governor. 

Approved  March  4,  1910. 


INTRODUCTION 

DDDD 

It  has  been  said  that  "there  is  at  least  one  field  in  which  the  elasticity 
of  the  common  law  has  proved  no  match  for  the  strain  put  upon  it  by  the 
development  of  modern  industry,  a  field  in  which  all  Europe,  including  Eng- 
land, has  struck  at  the  roots  of  a  fundamental  doctrine,  both  of  the  civil 
and  of  the  common  law,  but  in  which  the  United  States  remains  practically 
at  a  standstill.  This  is  the  field  which  is  commonly  called  Employers'  Lia- 
bility for  Damages."* 

In  Europe  a  system  of  compensation  for  industrial  accidents  has  been 
generally  adopted,  which  has  taken  the  place  of  the  old  common  law  methods 
of  compensation  for  injuries.  The  last  century  has  witnessed  the  supplanting 
of  hand-driven  tools  by  power-driven  machinery,  and  as  a  direct  consequence, 
of  small  independent  workers  by  large  systems  of  centralized  labor,  accompan- 
ied by  changes  in  the  social  fabric  that  our  ancestors  would  have  deemed 
incredible. 

There  is  probably  no  other  instance  in  the  history  of  the  law  or  in  the 
history  of  economics  where  a  system  of  law  has  been  required  in  a  compara- 
tively short  time  to  meet  so  radical  a  change  in  the  conditions  which  it  was 
designed  to  serve. 

The  discovery  of  steam  and  electricity,  as  active  agents  in  the  carrying 
on  of  the  business  of  transportation,  and  the  vast  manufacturing  industries 
which  the  last  century  has .  developed,  has  necessarily  brought  large  numbers 
of  persons  together  under  one  management,  and  the  combining  of  their 
efforts  toward  some  common  end. 

In  the  earlier  days,  these  people  had  worked  singly  or  in  small  groups  at 
their  benches  or  in  their  shops,  or  with  hand-driven  or  other  simple  machinery. 
Their  occupations  were  not  usually  hazardous,  and  what  dangers  existed  were 
obvious  to  the  most  unthinking. 

Each  man,  if  he  depended  upon  his  co-worker  in  any  way  for  safety 
or  assistance,  depended  upon  him  to  perform  a  simple  duty  or  to  do  a  plain 
job.  The  carpenter  employed  a  man  or  two,  the  blacksmith  had  a  helper, 
and  the  shoemaker  an  apprentice. 

As  we  know  it  today,  there  was  practically  no  division  of  labor.  The 
vital  inter-dependence  of  workmen,  which  we  now  find  everywhere  in  mod- 
ern factories,  or  railway  systems,  was  unthought  of.  Accidents  were  neces- 
sarily infrequent,  and  when  they  did  occur,  the  facts  surrounding  the  accident 
were  well  known  to  the  few  employes  and  their  employer,  and  there  was  a 
general  feeling  of  sympathy  and  brotherhood  which  the  general  extent  and 
complexity  of  our  present  industrial  system  makes  entirely  impossible.  Men 
worked  usually  with  their  own  simple  tools,  and  beside  their  own  familiar 
friends,  whose  general  qualities  for  efficiency  and  care  were  well-known. 

But,  as  we  have  said,  since  those  early  days,  conditions  have  radically 
and  rapidly  changed.  Where  girls  spun  their  flax  and  wove  their  linen  at 


*  18  Green  Bag,  185. 


8  EMPLOYERS'  LIABILITY  COMMISSION 

their  own  homes,  they  are  now  gathered  in  the  factories  and  woolen  mills  by 
the  hundred  and  taught  to  manage  power-driven  machinery,  the  most  careful 
use  of  which  is  bound  to  result  at  more  or  less  regular  intervals,  in  personal 
injury  to  the  operatives. 

The  simple  carpenter  has  developed  into  a  large  contractor,  engaged  in 
erecting  steel  and  stone  buildings  of  large  proportions,  employing  many  men, 
with  whom  he  has  no  personal  acquaintance.  In  like  manner,  the  simple 
blacksmith  shop  has  grown  to  be  a  large  foundry  or  mechanical  establishment 
in  which  the  simple  forge  has  been  replaced  by  blast-furnaces  and  other 
dangerous  manufacturing  devices.  The  simple  shoemaker  has  left  his  last 
and  lost  his  identity  in  joining  the  ranks  of  the  large  army  of  workmen 
engaged  in  the  manufacture  of  boots  and  shoes  by  machinery. 

The  mere  recital  of  these  evidences  of  radical  change  in  our  industrial 
conditions,  with  which  we  are  all  more  or  less  familiar,  but  of  which,  in  the 
hurry  of  business,  we  have  failed  to  take  careful  note,  is  sufficient  in  itself 
to  call  to  mind  the  urgent  need  for  some  change  in  the  law  in  regard  to  the 
relation  of  master  and  servant.  We  do  not  feel  that  the  employer  is  properly 
chargeable  with  any  fault  or  lack  of  interest  in  the  matter,  but  the  changes 
have  been  so  rapid  in  the  growth  and  development  of  the  resources  of  a  new 
country  like  this,  that  until  recently  it  has  been  more  or  less  natural  that 
no  one  should  stop  to  consider  carefully  the  changes  which  have  been  going 
on  in  industrial  affairs,  and  the  resultant  strain  which  such  changes  have 
produced  upon  the  rules  of  law  governing  the  relation  of  employer  and  em- 
ploye. 

It  frequently  happens  that  the  courts  of  this  country,  in  following  the 
common  law  rules  established  by  the  English  Courts,  have  persistently  adhered 
to  them  for  a  long  time  after  they  have  been  abandoned  or  abrogated  in  the 
land  of  their  origin.  This  has  been  true  with  reference  to  the  English  common 
law  rules  governing  the  relation  of  master  and  servant.  For  example,  the 
English  fellow-servant  doctrine  was  first  established  in  England  in.  1837,  in  the 
case  of  Priestly  vs.  Fowler;  3  M  &  W,  1;  and  the  doctrine  was  accepted 
almost  immediately  thereafter  in  this  country  by  the  courts  of  South  Carolina 
and  Massachusetts,  in  the  cases  of  Murray  vs.  South  Carolina  Railway  Com- 
pany ;  McMullen's  Law,  385,  decided  by  the  Supreme  Court  of  South  Carolina 
in  1841,  and  in  Farwell  vs.  Boston,  etc.  Railroad  Company ;  4  Mete.  49,  decided 
in  1842. 

The  fellow-servant  doctrine  was  abolished  in  England  in  1897,  by  the 
Chamberlain  Act,  and  has  not  been  applied  by  the  English  Courts  to  cases 
falling  under  the  compensation  law  since  that  time.  The  English  Parliament, 
apparently  recognizing  the  maxim  of  the  common  law  that,  the  reason  for  the 
rule  having  ceased,  the  rule  itself  should  be  abolished,  wiped  out  the  doctrine 
of  fellow-servant  and  adopted  a  system  of  Workmen's  Compensation.  The 
fellow-servant  doctrine  never  existed  in  the  law  of  any  other  country  in  Eu- 
rope. Pollock  on  Torts ;  8th  Ed.,  p.  100.  Our  courts,  however,  still  cling  to 
the  common  law  rule,  announced  in  Priestly  vs.  Fowler.  The  doctrine  has 
therefore  been  in  force  in  this  country  for  sixty-three  years,  and  was  in  force 
in  England  for  sixty  years  only,  and  was  abolished  entirely  thirteen  years 
ago;  so  that  we  occupy  an  unfortunate  eminence  in  America,  of  being  the 
only  industrial  country  in  the  world  which  clings  to  this  common  law  rule 


EMPLOYERS'  LIABILITY  COMMISSION 


regulating  the  relation  of  master  and  servant,  and  which  has  neglected  so  far 
to  adopt  a  system  of  compensation  for  industrial  injuries,  regardless  of  fault. 

That  there  is  abundant  reason  for  a  change  in  the  system  of  compensating 
the  sufferers  from  industrial  accidents,  in  addition  to  those  already  enumer- 
ated, is  readily  seen  from  a  most  casual  examination  of  the  statistics  now 
available  with  regard  to  accidental  injuries. 

Statistics  which  have  been  compiled  within  the  last  few  years  show  that 
probably  fifty  per  cent,  of  the  accidents  which  occur  in  industry  are  traceable 
neither  to  the  fault  of  the  employer  nor  to  the  negligence  of  the  employe, 
but  that  such  percentage  of  injuries  is  due  entirely  to  the  inevitable  and  in- 
herent hazard  of  the  trade,  or,  what  the  French  economists  call  the  "risque 
professionel." 

This  fact  being  established,  it  is  at  once  seen  that  a  large  element  of  public 
interest  is  introduced  into  the  general  question  of  industrial  accidents  which  in 
our  judgment  would  make  the  courts  exceedingly  loath  to  say  that  the  legisla- 
ture might  not  with  propriety  recognize  such  conditions,  and  adopt  some 
reasonable  and  effective  plan  of  regulation  for  the  industries  in  which  so  large 
a  proportion  of  the  accidents  occur,  without  the  fault  of  any  of  the  immediate 
persons  engaged  in  carrying  it  on,  and  which  inevitably  result  in  great 
hardship  and  oft-times  reduce  the  dependents  of  those  who  are  injured  to  a 
state  of  pauperism,  which  eventually  calls  for  the  assistance  of  the  agencies 
of  charity  furnished  by  the  State  or  the  municipality  in  which  they  live. 

It  appears,  in  short,  that  the  Moloch  of  industrial  activity  demands  a 
sacrifice  of  human  life  and  limb,  constant,  as  the  actuaries'  tables  show,  and 
inevitable  so  long  as  human  contrivances  and  human  understanding  are 
fallible. 

It  is  obvious  that  for  losses  such  as  these  some  one  must  pay.  In  the 
first  instance,  it  is  the  workman  himself.  In  the  long  run,  however,  there  is  an 
economic  loss  that  is  charged  upon  the  community — and  this  is  the  accompan- 
iment of  an  individual  hardship  of  a  peculiarly  distressing  nature. 

"While  fire,  deterioration  of  plant  and  financial  loss  are  insured  against, 
and  the  insurance,  whatever  form  it  may  take,  is  charged  to  the  cost  of  produc- 
tion, no  account  has  thus  far  been  taken  in  America  of  the  deterioration  of 
the  human  machine."* 

Observing  this,  our  State  government  has  wisely  chosen  to  follow  the 
European  example  and  make  some  effort  to  devise  a  plan  by  which  the  inevit- 
able losses  arising  from  the  inherent  risks  of  trade  shall  fall,  in  large  part, 
upon  the  consumer  of  the  commodity,  the  manufacture  of  which  has  demanded 
the  sacrifice,  such  losses  for  the  purposes  of  convenient  administration  to  be 
divided  in  the  first  instance  between  the  employer  and  employe,  by  paying  to 
the  latter  approximately  one-half  wages  for  the  time  lost  as  a  result  of  indus- 
trial injury. 

This  was  the  problem  which  the  Illinois  Employers'  Liability  Commission 
attempted  to  meet  and  solve,  so  far  as  possible.  While  the  Commission  was 
unable  to  agree  upon  a  bill  covering  the  two  aspects  of  the  subject — that  ot 
employers'  liability  and  industrial  compensation — its  investigations  showed 
with  overwhelming  clearness  the  evils  of  the  present  situation  and  the 
necessity  for  a  radical  improvement. 


*  18  Green  Bag,  189. 


10  EMPLOYERS'  LIABILITY  COMMISSION 

THE   INVESTIGATIONS   OF   THE    COMMISSION. 

The  Employers'  Liability  Commission  approached  its  conclusions  slowly 
and  as  the  result  of  several  lines  of  preliminary  inquiry.  It  made  a  study 
of  the  present  legal  situation  in  Illinois,  and  the  fruits  of  that  study,  as 
embodied  in  the  opinion  of  Mr.  Samuel  A.  Harper,  the  attorney  for  the 
Commission,  are  to  be  found  elsewhere  in  this  report.  But  it  made  simul- 
taneously with  this  a  careful  study  of  the  industrial  situation  as  well,  a 
study  of  the  actual  working  out,  in  as  many  cases  as  could  be  investigated  in 
the  time  at  the  Commission's  disposal,  of  the  present  litigious  and  haphazard 
method  of  industrial  compensation. 

There  was  much  material  available  for  this  in  the  collected  statistics 
of  the  various  departments  of  the  State  government  and  of  other  public 
bodies.  The  Bureau  of  Labor  furnished  a  comparative  table  for  two  and 
one-half  years,  the  Coal  Report  furnished  vital  statistics  for  twenty-six  years, 
the  Railroad  and  Warehouse  Commission  furnished  data  for  four  years,  and 
the  Factory  Inspection  Department  furnished  cases  extending  over  six 
months.  In  addition  the  Commission  had  recourse  to  the  tables  compiled 
by  the  Insurance  Department  of  the  State,  to  the  records  of  the  Coroner  of 
Cook  County,  and  those  of  the  County  Agent.  Furthermore,  we  have  re- 
ceived a  measure  of  co-operation  from  industrial  organizations  such  as  we 
believe  has  never  heretofore  been  available  anywhere  in  the  country.  Sug- 
gestions from  trade  unions,  railway  brotherhoods,  and  the  occasional  personal 
counsel  and  assistance  of  business  or  professional  men  have  helped  to  smooth 
out  many  rough  places  and  greatly  facilitate  the  work  of  the  Commission. 

There  was  naturally  considerable  duplication  in  the  cases  at  first,  but 
by  listing  them  all  by  name  and  key  number,  the  duplicate  cases  were  de- 
tected and  thrown  out.  Then  the  cases  were  investigated,  some  5,000  in  all. 
Employes  of  the  Commission  sought  out  each  one  and  endeavored  to  get  a 
complete  record  of  such  facts  as  the  nature  of  the  employment  and  the 
character  of  the  accident;  the  nationality  and  marital  condition  of  the 
victim ;  the  number  of  those  dependent  upon  him ;  the  insurance  carried ;  the 
amount  of  compensation  and  its  character,  whether  by  settlement  out  of 
court  or  in  an  award  of  damages. 

This  total  of  5,000  cases  included  several  thousand  temporary  accidents, 
the  main  interest  in  which  was  the  amount  of  compensation  paid  for  the 
various  sorts  of  injury.  About  500  cases  were  those  of  permanent  disability 
and  these  required  much  more  data.  The  cases  resulting  in  death  were,  in 
round  numbers,  about  1,000,  and  upon  these  the  investigators  of  the  Com- 
mission were  immediately  assigned. 

It  soon  became  evident  that  a  record  of  1,000  fatal  accidents  could  not 
be  secured.  Hundreds  of  cases  could  not  be  found  at  all — the  families  had 
disintegrated  or  moved  away.  One  persevering  investigator,  not  content  with 
the  answer,  "moved  away,"  which  he  received  in  one  of  his  cases,  followed 
up  the  available  clews  and  found  that  a  widow,  left  helpless  by  the  killing 
of  her  husband,  had  been  driven  into  a  life  of  immorality  and  was  keeping 
her  four  little  girls  on  the  wages  received  for  the  sale  of  her  person.  The 
industry  which  took  her  husband's  life  took,  it  is  evident,  a  great  deal  more. 
How  many  other  cases  of  this  sort  an  exhaustive  search  would  reveal  there 


EMPLOYERS'  LIABILITY  COMMISSION  11 

is  no  means  of  estimating,  but  it  was  evident  that  hundreds  of  families 
became  broken  up  and  migratory.  Out  of  the  thousand  odd  cases  with 
which  the  Commission  started,  it  was  able  to  get  full  and  satisfactory  records 
of  614,  covering  the  principal  industries  in  the  State. 

These  614  cases  were  checked  up  with  so  much  care  that  the  Commission 
believes  that  the  facts  and  figures  secured  in  this  inquiry  are  not  only  trust- 
worthy in  themselves,  but  are  thoroughly  representative  of  the  situation 
prevailing  in  industrial  Illinois.  The  investigation  not  only  demonstrated  the 
injustice  and  the  economic  waste  of  the  present  situation,  but  was  of  material 
assistance  in  suggesting  the  lines  which  a  reform  of  the  evils  disclosed 
should  take. 

A  table  of  these  cases  has  been  worked  out  with  considerable  care, 
showing  how  the  present  system  of  compensation — if  it  may  be  called  a 
system — works  out  in  this  State.  The  accompanying  table  (pages  12  and  13) 
is  worth  a  careful  study. 

These  figures,  the  Commission  believes,  speak  for  themselves  on  the 
single  point,  at  least,  whether  or  not  the  present  system  furnishes  adequate 
support  for  the  families  deprived  by  industry  of  their  bread  winners.  It  is 
clear  from  these  tables  that  the  present  system  does  not  furnish  adequate 
support. 


EMPLOYERS'  LIABILITY  INSURANCE 

Much  valuable  data  might  have  been  obtained  from  the  various  Em- 
ployers' Liability  Insurance  Companies  had  the  Commission  the  time  to  go 
into  so  complicated  a  matter.  Willing  responses  were  made  to  inquiries, 
but  variations  in  the  method  of  tabulating  the  figures  made  it  practically 
impossible  to  compile  them  and  avoid  misleading  conclusions.  » 

Classified  data  from  a  number  of  companies,  covering  a  period  of  six 
years  (1900  to  1905  inclusive)  indicate  that  of  premiums  paid,  about  42%  was 
expended  for  medical  attendance  and  indemnity ;  about  10%  for  legal  ex- 
penses and  attorney's  fees;  and  about  10%  for  investigations  and  claim 
expenses,  leaving  about  38%  for  expenses  of  administration,  cost  of  securing 
business  and  profit.  Since,  in  case  an  attorney  for  the  plaintiff  is  employed, 
he  usually  receives  one-third  and  frequently  one-half  of  the  amount  recovered, 
it  is  probable' that  out  of  every  dollar  at  present  paid  by  the  employer  for 
liability  insurance,  only  about  25  cents  ever  reaches  the  person  injured  or 
his  dependents. 

W.hether  or  not  th6  business  of  the  liability  companies  is  unduly  costly 
or  unduly  profitable,  it  is  apparent  that  the  larger  part  of  the  waste  revealed 
by  these  figures  is  inherent  under  the  existing  system,  whether  liability 
insurance  is  obtained  by  the  employer  or  not.  So  long  as  indemnity  for 
injury  depends  upon  the  question  of  fault,  and  the  amount  to  be  recovered 
is  left  uncertain,  litigation,  expensive  to  both  plaintiff  and  defendant,  cannot 
be  avoided,  and  this  waste  must  continue,  whether  or  not  the  liability  laws 
are  changed  or  remain  as  they  are. 

Nor  does  the  person  injured  get  this  25%  of  what  the  employer  pays 
promptly,  when  he  most  needs  it.  Returns  of  all  liability  companies  doing 


EMPLOYERS'  LIABILITY  COMMISSION 


SUMMARY  OF  614  CASES 


INDUSTRY. 

Total. 

SETTLEMENT  OUT  OF  COURT. 

No. 

Aggregate. 

Average. 

Railroads,  Trades    

202 
77 
33 
8 
38 
16 
120 
33 
28 
19 
16 
18 
9 

135 
50 
14 
2 
14 

$196,718.55 
46,806.65 
10,250.00 
600.00 
13,050.00 

$1,457.18 
936.13 
732.14 
300.00 
932.14 

Railroad  Laborers 

Electric  Railways,  Trades.  .           .... 

Electric  Railway  Laborers  
Building  Trades 

* 
Building  Trades,  Laborers  

Miners                      

26 
23 
6 

7,648.55 
28,847.25 
8,200.00 

294  .  18 
1,254.23 
1,366.67 

Steel  Workers  
Miscellaneous  Trades. 

Teamsters  

Packing  House  Employes  
Laborers 

2 
4 
5 

•i 

3,750.00 
2,775.00 
2,805.00 

1^875.00 
693.75 
561.00 

Unclassified           .  . 

*614 

281 

$321,451.00 

*Three  railroad  men  received  compensation,  both  "in"  and  "out"  of  court. 


EMPLOYERS'  LIABILITY  COMMISSION 


13 


OF  FATAL  ACCIDENTS. 


SETTLEMENT  IN  COURT. 


No. 

Aggregate. 

Average. 

Number  of 
Suits 
Pending. 

No  Recovery. 

In  and  Out  of 
Court 
Average. 

10 
3 

$20,783.00 
737.00 

$2,078.30 
245.67 

34 
13 

8 

25 
12 
11 

$1,076.74 
617.45 
310  60 

3 

3 

75  00 

1 

200.00 

200.00 

7 
8 

16 

8 

348.68 

10 

11,021.50 

1,102.15 

9 
6 

75 
4 

155  .  59 
874  .  16 

7 

15 

292.86 

• 

7 

12 

2 

12 

234.37 

4 

10 

154  .  17 

3 

1 

311.66 

24 

$32  749   >0 

111 

204 

14  EMPLOYERS'  LIABILITY  COMMISSION 

business  in  Illinois,  covering  a  period  of  ten  years,  tabulated  by  the  State 
Department  of  Insurance,  show  that  of  the  total  indemnity  -paid  on  behalt 
of  accidents  occurring  during  the  first  year  of  the  series,  16%  was  paid 
during  that  year,  37%  the  second  year,  20%  the  third  year,  14%  the  fourth 
year,  and  the  remaining  13%  during  the  six  succeeding  years.  Can  any- 
thing good  be  said  in  support  of  a  system  as  impotent  as  this? 

Insurance  is  desirable  both  for  the  employer  and  the  injured  employe, 
lest  a  serious  accident  bankrupt  the  former  and  deprive  the  latter  of  indem- 
nity. And  if  general  compensation  for  industrial  accidents  is  provided  by 
statute,  insurance  will  become  even  more  necessary.  Indeed,  were  the  sub- 
ject not  so  complex  and  the  time  allotted  so  short,  the  Commission  would 
probably  be  disposed  to  make  compulsory  insurance  an  integral  part  of  any 
scheme  for  general  compensation.  However,  that  feature  could  better  be 
added  later  as  occasion  arose. 

A  general  compensation  act  would  tend,  of  course,  greatly  to  reduce 
litigation.  That,  in  turn,  would  tend  to  reduce  the  cost  of  insurance.  And 
the  cost  would  be  still  further  reduced  by  the  increased  demand  for  insur- 
ance which  would  lessen  the  jcost  of  securing  new  business  and  of  adminis- 
tration. Indeed,  commissions  to  agents  have  been  already  sharply  reduced 
since  the  passage  of  the  New  York  law  during  the  present  year. 

With  greater  certainty  as  to  indemnity  the  cost  can  be  more  accurately 
measured  and  the  element  of  guess  reduced,  so  that  a  large  apparent  margin 
of  profit  would  tend  to  disappear.  Doubtless  the  enactment  of  a  general 
compensation  measure  in  Illinois  would  result  in  the  organizing  of  Mutual 
Liability  Companies  in  various  industries,  in  order  to  secure  average  results 
to  its  policy  holders  at  cost,  which  would  preserve  all  the  money  paid  for 
premiums  to  the  people  of  the  State.  Moreover,  liability  for  all  accidents 
would  make  the  insurance  companies  (old-line  and  mutual  alike)  increas- 
ingly active  in  accident  prevention,  while  careful  and  law  abiding  employers. 
members  of  mutual  companies,  would  exert  themselves  to  see  that  they  were 
not  taxed  for  the  carelessness  and  neglect  of  their  fellow  employers. 


REPORT   OF   THE 
COMMISSION 

DDDD 


THE    EMPLOYERS'  LIABILITY   COMMISSION 
OF   THE    STATE    OF    ILLINOIS 

CHICAGO,  ILL.,  September  15,  1910. 

To  Hon.  Charles  8.  Denccn,  Governor  of  Illinois. 

Dear  Sir :     The  Employers'  Liability  Commission,  appointed  by  you  pur- 
suant to  an  act  of  the  Legislature,  approved  March  4,  1910,  to  "investigate  the 
problems  of  industrial  accidents,  and  especially  the  present  condition  of  the 
law  of  liability   for  injuries  or  death   suffered  in  the  course  of  industrial 
employment,  as  well  in  this  State  as  in  other  States  or  countries,"  and  to 
"inquire  into  the  most  equitable  and  effectual  method  of  providing  for  com- 
pensation for  losses  suffered  as  aforesaid,"  submits  the  following  report : 
The  following  were  appointed  members  of  the  Commission  : 
Employers: 

I.  G.  Rawn,  President,  Monon  Railroad,  Chicago. 

Mason    B.    Starring,    President,    Northwestern    Elevated    Railroad, 

Chicago. 
Robert   E.    Conway,    General    Manager,    Armour    Packing    Company. 

National  Stock  Yards,  111. 

E.  T.  Bent,  Secretary,  Illinois  Coal  Operators'  Association,  Chicago. 
P.  A.  Peterson,  President,  Union  Furniture  Company,  Rockford,  111. 
Charles  Piez,  President,  Link-Belt  Company,  Chicago. 
W.   J.   Jackson,   Vice-Presideut  and  General   Manager,    Chicago   and 
Eastern  Illinois  Railroad,  Chicago.  ^  (Elected  to  succeed  Mr.  Rawn.) 
Employees: 

Edwin    R.    Wright,    President,    Illinois    State    Federation    of   Labor, 

Chicago. 

Geo.  Golden,  President,  Packing  House  Teamsters,  Chicago. 
Patrick  Carr,  United  Mine  Workers  of  America,  Ladd,  111. 
M.  J.  Boyle,  Switchmen's  Union  of  North  America,  Chicago. 
Daniel   J.    Gorman,    President,    Amalgamated    Association   of    Street 

Railway   Employees.   Peoria.  111. 
John  Flora,  Chicago  Federation  of  Labor,  Chicago. 

The  Commission  held  its  first  meeting  at   Springfield,   111.,   March  24th, 
1010,  and  was  addressed  by  Governor  Chas.  S.  Deneen.     After  the  Governor's 


16  EMPLOYERS'  LIABILITY  COMMISSION 

address,  the  Commission  organized  by  electing  Mr.  I.  G.  Rawn  as  chairman, 
and  Mr.  Edwin  R.  Wright  as  secretary. 

The  Commission  appointed  Mr.  Samuel  A.  Harper,  of  Chicago,  its  attorney. 

The  Commission  has  held  thirty  executive  sessions,  and  thirteen  public  hear- 
ings; five  in  Chicago  and  two  each  at  East  St.  Louis,  Springfield,  Rock  Island  and 
Peoria. 

A  joint  meeting  was  held  in  Chicago  with  the  Wisconsin  State  Commission, 
and  the  Secretary  and  Attorney  attended  a  joint  conference  of  the  New  York 
Commission  and  the  National  Civic  Federation  at  New  York  City.  Several 
representatives  of  the  Commission  attended  one  of  the  public  hearings  given 
by  the  Wisconsin  Commission  at  Milwaukee.  The  Commission  also  took  an 
active  part  in  the  national  convention  held  at  the  Auditorium  Hotel,  Chicago. 
June  10th  and  llth,  under  the  auspices  of  the  American  Association  for  the 
Promotion  of  Labor  Legislation,  at  which  convention  the  Commissions  of 
Minnesota,  New  York,  Wisconsin  and  Massachusetts  were  also  represented. 
Delegates  from  New  Jersey,  Indiana,  Connecticut  and  other  states  were  in 
attendance. 

The  Commission  agreed  with  the  Governor  in  his  statement  made  at  its 
first  meeting  that  a  thorough  investigation  should  first  be  made  into  actual 
working  conditions  in  the  industries  of  the  State  before  any  attempt  was 
made  to  draft  a  new  law  covering  the  general  subject  of  employers'  liability, 
or  to  suggest  amendments  to  the  present  laws. 

A  thorough  investigation  was  therefore  immediately  planned,  and  was 
carried  on  under  the  following  heads : 

SPECIAL  REPORTS. 

1.  A  comparative  study  of  the  English  and  German  systems  of  compensa- 
tion, of  the  systems  proposed  by  various  states  of  the  United  States,  and  of  the 
relief  associations  operating  in  the  State  of  Illinois. 

2.  A  study  of  the  systems  of  compulsory  insurance  and  workmen's  com- 
pensation in  Europe. 

3.  A  preliminary  analysis  of  the  state  of  the  law  of  employers'  liability 
in  New  York,  with  a  discussion  as  to  the  legal  adaptability  in  the  State  of 
Illinois  of  foreign  plans  of  compensation,  and  a  consideration  of  the  most 
feasible  plan  to  be  adopted. 

STATISTICAL  STUDIES. 

1.  An  investigation  was  made  of  200  industrial  fatalities  reported  to  the 
coroner  of  Cook  County  during  the  year  1908,  and  of  483  industrial  fatalities 
reported  to  the  authorities  as  occurring  in  other  portions  in  the  State,  for 
the  purpose  of  discovering  the  legal  and  economic  result  of  such  accidents,  viz. : 
the  earning  capacity  of  the  workmen  killed,  the  number  of  dependents,  the 
compensation  received  from  employers  by  suit  or  settlement,  the  amount  paid 
lawyers  or  agents,  and  the  effect  of  such  accident  upon  the  life  of  the  family. 

2.  An  investigation  was  made  of  771  industrial  accident  cases,  including 
death  and  injury,  reported  to  the  Railroad  and  Warehouse  Commission,  the 
Bureau  of  Labor,  the  Department  of  Factory  Inspection,  and  to  various  organi- 
zations, boards  and  associations. 


EMPLOYERS'  LIABILITY  COMMISSION  17 

3.  An  investigation  was  made  of  718  industrial  accident  cases,  including 
death  and  injury  in  mines  and  quarries. 

4.  An  inquiry   was  made  into  the  cost  of  industrial  accidents  to  500 
employers  in  the  State  of  Illinois,  to  discover  the  total  cost  under  the  present 
system  of  employers'  liability  and  the  proportion  of.  amount  spent  in  hospital 
and  medical  expenses,  insurance  premiums,  attorney's  fees,  settlement  and 
damages. 

5.  A  study  was  made  of  employer's'  liability  insurance  experience  for  the 
purpose  of  ascertaining  the  number  of  cases  handled,  the  amount  of  settlements 
made,  with  and  without  suit,  and  the  proportion  of  payments  to  premiums 
received,  et  cetera. 


GENERAL  INQUIRIES. 

1.  A  series  of  questions  were  submitted  in  the  form  of  a  letter  to  1,200 
employers,  members  of  the  Illinois  Manufacturers'  Association  and  others,  and 
to  1,700  labor  organizations  of  the  State,  for  the  purpose  of  securing  their 
opinion  as  to  the  justice  and  adequacy  of  the  present  law  relating  to  employers' 
liability  and  as  to  the  advisability  of  changing  the  law  relating  thereto. 

2.  A  letter  was  sent  to  about  two  hundred  judges  and  prominent  attorneys 
throughout  the  State,  asking  their  opinion  concerning  the  constitutionality  of 
a  proposed  workmen's  compensation  law  which  should  disregard  all  questions 
of  negligence  and  be  compulsory  upon  both  employer  and  employee. 

Practically  all  of  the  judges  declined  to  express  in  writing  their  views 
upon  the  constitutionality  of  such  a  law  on  the  ground  that  they  might  be 
called  upon  to  pass  upon  the  question  in  their  official  capacity  after  the  passage 
of  the  law,  and  they  did  not  think  it  wise  to  pre-judge  the  case.  Several  of 
the  judges,  however,  verbally  expressed  themselves  to  the  attorney  for  the 
Commission  as  favoring  a  change  in  the  present  common  law  rules  governing 
the  relation  of  master  and  servant. 

Several  attorneys  gave  the  Commission  the  benefit  of  their  opinion  upon 
the  constitutional  questions  submitted. 

Along  with  these  general  studies  of  the  legal  and  legislative  aspects  of 
the  questions  submitted  to  it,  the  Commission  made  extensive  investigations 
in  more  than  5,000  cases  of  industrial  accidents — fatal  and  non-fatal — in 
this  State,  with  a  view  to  ascertaining  what  compensation,  if  any,  is  secured 
under  the  existing  conditions. 

Full  and  complete  reports  covering  614  fatal  cases  were  secured  by 
investigators  of  the  Commission.  The  facts  disclosed  were  extraordinary. 
The  Commission  found  that  of  the  entire  614  cases,  only  twenty-four  had 
resulted  in  a  successful  settlement  in  court  and  204  were  without  any  settle- 
ment, either  in  or  out  of  court.  The  popular  notion  that  the  workingman,  or 
his  family  in  the  event  of  his  death,  has  a  chance  to  secure  comfortable 
damages,  was  utterly  refuted  by  an  examination  of  the  facts. 


IS 


EMPLOYERS'  LIABILITY  COMMISSION 


The  following  table  gives  a  brief  summary  of  the  situation  as  the  Com- 
mission found  it  (see  also  tables  pages  12  and  13)  : 

FATAL  ACCIDENTS. 


OCCUPATION. 

ii 

'K 

Cases  Now  in 
Court. 

fa 

Settled  out 
of  Court. 

No  Recovery. 

Railroad  trades  
Railroad  laborers  

202 

77 

10 
3 

34 
13 

135 
50 

25 
12 

Electric  railway  trades 

33 

8 

14 

11 

Electric  railway  laborers 

8 

3 

2 

3 

Building  trades 

38 

1 

7 

14 

16 

Building  trades  laborers 

16 

8 

8 

Miners 

120 

10 

9 

26 

75 

Steel  workers 

33 

6 

23 

4 

Miscellaneous  trades  .  .             .... 

28 

7 

6 

15 

Teamsters  

19 

7 

12 

Packing  house  employes  

16 

2 

2 

12 

General  laborers  

18 

4 

4 

10 

Unclassified 

9 

3 

5 

1 

614 

24 

111 

281 

204 

Three  cases  show  a  dual  recovery,  both  in  and  out  of  court. 


THE  COMMISSION  FURTHER  FOUND  : 

That  the  average  compensation  paid  out  of  court  for  the  death  of  a 
skilled  railway  employe  was  $1,457.  Cases  settled  in  court  had  an  average 
award  of  $2,078.  More  than  twelve  per  cent  of  the  cases  recovered  nothing 
whatever. 

That  the  average  settlement  out  of  court  for  the  death  of  a  railway 
laborer  amounted  to  $936.  The  few  cases  that  were  settled  in  court  were 
probably  not  representative.  At  all  events  their  average  was  extremely 
low— $245. 

That  the  average  death  settlement,  out  of  court,  in  the  skilled  building 
trades  was  $932.  The  only  successful  court  settlement  which  the  Commission 
found  netted  $200.  Almost  fifty  per  cent  of  the  entire  number  of  building 
trade  cases  investigated  by  the  Commission  recovered  nothing  whatever. 

That  the  average  settlement  out  of  court  for  the  death  of  a  miner  was 
$294  and  ten  successful  court  cases  which  we  found  averaged  $1,021.  But 
more  than  sixty  per  cent  of  the  cases  had  no  settlement,  either  in  or  out  of 
court. 

That  in  the  nineteen  teamsters'  cases  which  came  under  the  investigation 
of  the  Commission,  not  a  single  one  showed  a  settlement  of  any  sort,  and  in 
only  seven  of  the  nineteen  were  there  suits  pending. 

That  the  families  of  steel  workers  recovered  through  out  of  court 
settlements  an  average  compensation  of  $1,254.  The  Commission  found  no 
successful  court  cases. 

But  this  outline,  convenient  for  certain  purposes,  scarcely  hints  at  the 
situation  which  the  Commission  found.  It  gives  no  idea  of  the  suffering  and 
hardship  which  our  investigations  disclosed;  it  tells  nothing  of  the  long  and 
tedious  fights,  of  the  inequitable  verdicts,  the  delays  and  uncertainties  of  the 


EMPLOYERS'  LIABILITY  COMMISSION  19 

law;  it  scarcely  suggests  the  unequal  character  of  the  struggle  between  the 
claim  agents  and  the  families  of  the  deceased  bread  winner.  But  almost 
every  individual  case  reflected  some  aspect  or  other  of  this  sort,  driving 
home  to  the  members  of  the  Commission  the  conviction  that  the  present 
system  was  unjust,  haphazard,  inadequate  and  wasteful,  the  cause  of  enor- 
mous suffering,  of  much  disrespect  for  law  and  of  a  badly  distributed  burden 
upon  society. 

THE    FIRST    PUBLIC    STATEMENT. 

Having  completed  its  preliminary  investigation,  the  Commission  arranged 
a  tour  of  the  State  and  outlined  the  following  plan  as  a  guide.  Ten  thousand 
copies  were  printed  and  distributed. 

The  public  meetings  were  well  attended,  and  the  suggestions  of  the 
Commission  created  wide  discussion.  The  full  text  of  the  public  letter  and 
proposed  plan  for  a  compensation  law  follows: 


EMPLOYERS'    LIABILITY   COMMISSION 
OF  ,THE  STATE  OF  ILLINOIS. 

Chicago,  July  18,  1910. 
To  the  Public: 

The  Employers'  Liability  Commission  of  Illinois  was  authorized  by  the 
Forty-Sixth  Session  of  the  Legislature,  subsequently  appointed  by  the  Gov- 
ernor, and  duly  organized  March  24th,  1910,  to  "investigate  the  problem  of 
industrial  accidents,"  and  to  report  a  "draft  of  such  bill  or  bills  as  may  be 
deemed  appropriate"  for  accomplishing  "the  most  equitable  and  effectual 
method  of  providing  for- compensation  for  losses  suffered  as  aforesaid." 
In  this  work  the  Commission  has  for  its  aim  the  conservation  of  human  life, 
and  the  happiness  and  opportunity  provided  by  a  greater  sense  of  industrial 
security.  The  Commission  has  been  and  still  is  actively  engaged  in  securing 
and  considering  the  industrial  statistics  of  this  and  other  states. 

The  plan  of  the  Commission  (page  20)  is  tentative  and  susceptible  of 
change  both  in  scope  and  in  form,  and  suggestions  are  invited.  For  the 
purpose  of  submitting  the  ideas  of  the  Commission  directly  to  the  industrial 
groups  most  concerned,  to  the  legal  fraternity,  and  to  the  people  of  the 
State  with  the  least  possible  inconvenience  to  all,  public  meetings  will  be 
held  (afternoon  and  evening  sessions)  as  follows:  East  St.  Louis,  August 
llth;  Springfield,  August  12th;  Rock  Island,  August  17th;  Peoria,  August 
18th;  Chicago,  August  24th  and  25th. 

Stenographic  records  of  these  meetings  will  be  kept.  After  consideration 
of  the  comments  and  suggestions  offered,  draft  of  a  bill  or  bills  will  be  sub- 
mitted to  the  Governor  of  the  State.  Respectfully, 

EDWIN  R.  WRIGHT, 

Secretary,  Employers'  Liability  Commission  of  the  State  of  Illinois. 
By  Order  of  the  Commission. 


20  EMPLOYERS'  LIABILITY  COMMISSION 

The  condensed  scheme  first  proposed  by  the  Commission  took  the  form 
of  the  following  outline  of  a  compensation  measure,  and  was  designed  merely 
as  a  topical  index  for  discussion,  as  follows: 

THE  PLAN 

OF  A  WORKMAN'S  COMPENSATION  BILL  UNDER  CONSIDERATION  BY  THE 
COMMISSION,  THE  MAIN  PURPOSES  OF  WHICH  SHALL  BE: 

(1)  To  provide  compensation  for  losses  by  reason  of  industrial  acci- 
dents, resulting  in  death  or  incapacity  to  employes,  regardless  of  any  question 
of  negligence  or  fault,  except  in  cases  of  serious  or  willful  misconduct  of  the 
employe. 

(2)  To  make  the  law  compulsory  in  form,  but  elective  in  fact,  provid- 
ing in   the   first   instance   that   the   employer   shall   pay   the   compensation, 
according  to  the  scale  set  forth  in  the  act,  but  reserving  to  both  employer 
and  employe  their  common  law  remedies,  including  trial  by  jury,  providing, 
however,  as  to  the  employer  that  if  he  refuses  to  pay   the  compensation 
according  to  the  scale  provided,  and  forces  the  employe  to  his  action  at  the 
common  law,  he  shall  not  escape  liability  by  reason  of  either  (1)  the  fellow 
servant  rule,   (2)   the  assumption  of  the  risk,  or   (3)   the  contributory  negli- 
gence of  the  employe,  unless   his   negligence  be  greater   than   that  of   the 
employer,   in  which   event  the  damages  shall   be  apportioned  according  to 
the  relative  degree  of  negligence,  and  the  burden  of  proof  shall  be  upon  the 
employer ;  and  providing  as  to  the  employe  that  he  shall  be  presumed  to 
have  accepted  the  compensation  law,  and  any  acceptance  by  him  of  com- 
pensation under  the  proposed  law,   except  necessary   medical   and  surgical 
attention,  shall  bar  the  right  of  action  at  common  law,  and  the  beginning 
of  any  action  at  law  shall  bar  his  right  to  compensation  under  the  proposed 
law,  except  in  the  case  of  willful  negligence  of  the  employer  or  his  failure 
to  comply  with  statutory  or  municipal  safety  regulations;  these  two  limita- 
tions upon  the  rights  of  the  respective  parties  being  imposed  for  the  purpose 
of  inducing  them  both  to  accept  the  compensation  law,  and  to  refrain  from 
using  the   present   unsatisfactory   methods   of   settling  claims   for   personal 
injury. 

(3)  To  provide  a  scale  of  compensation  as  follows : 

(a)  Death :  Where  there  are  dependents,  three  years'  wages,  but  not  less 
than  $1,500  nor  more  than  $3,000.  Where  there  are  no  dependents,  a 
sum  not  to  exceed  $200. 

(Z>)  Permanent  disability:  A  pension  on  the  basis  of  50%  of  the  earnings  of 
the  employe,  to  be  paid  as  long  as  the  disability  lasts,  or  until  the  com- 
pensation or  pension  paid,  equals  the  amount  of  four  years'  wages,  such 
pension  to  commence  after  two  weeks'  disability.  Where  the  disability  is 
permanent,  but  only  partial,  the  percentage  of  compensation  or  pension 
to  be  reduced  in  proportion  to  the  reduction  in  earning  capacity. 

(c)  Temporary  disability :  When  such  disability  is  determined  to  have 
existed  in  a  bona  fide  form  for  two  weeks  or  more,  then  compensation  to 
be  awarded  from  the  day  the  employe  left  work,  on  the  basis  of  50%  of 
the  earnings,  to  be  paid  as  long  as  the  disability  lasts;  all  cases  of 
disability  to  be  determined  by  physician  of  employer,  or,  by  consujta- 


EMPLOYERS'  LIABILITY  COMMISSION  21 

tion,  if  employe  desires,  of  the  employer's  physician  with  one  to  be 
engaged  by  the  employe,  and  if  these  two  cannot  agree  upon  the  nature 
and  probable  duration  of  the  injury,  then  a  third  to  be  called  in;  the 
decision  of  the  physicians  to  be  used  as  a  basis  for  computing  the  com- 
pensation due,  such  examinations  to  be  made  at  subsequent  times,  for 
the  purpose  of  reconsidering  the  question,  if  circumstances  seem  to 
require  it. 

(d)  Minors  in  case  of  permanent  disability,  to  be  paid  compensation  as  above, 
on  basis  of  50%  of  the  earnings  of  adults,  in  the  same  line  of  employ- 
ment; in  case  of  temporary  disability,  when  they  have  dependents,  to 
be  paid  compensation  as  long  as  it  lasts  as  above,  on  basis  of  50%  of  the 
earnings  of  adults  in  the  same  line  of  employment,  provided  that  the 
compensation  paid  shall  not  exceed  the  full  weekly  pay ;  when  they  have 
no  dependents,  on  basis  of  50%  of  their  own  earnings. 

(4)  Disputes  arising  under  the  compensation  law  to  be  settled  by  agree- 
ment of  the  parties,   or  arbitration,   and   confirmed  by   a   court  of  proper 
jurisdiction. 

(5)  Claims  of  employes,   under  the  law  shall   be  preferred,   same  as 
wage  claims  are  now  preferred  under  the  law,  and  shall  take  precedence  of 
other  wage  claims  of  other  employes  not  injured. 

(6)  Reasonable  notice  of  claims  shall  be  given  to  employer,  but  failure 
to  comply  strictly  with  statute,  in  regard  to  details,  not  to  be  fatal  to  the 
right  to  compensation  unless  the  employer  can  show  that  he  has  been  unduly 
prejudiced  by  such  failure. 

(7)  Report  to  be'  made  by  employer,  of  all  cases  of  injury  for  which 
compensation  has   been   or   is   being  paid,    to   the   State   Bureau   of   Labor 
Statistics. 

(8)  The  compensation  to  be  paid  in  installments,   conforming  to  the 
manner  of  payment  of  wages  while  the  employe  was  at  work,  except  the 
employe  or  person  entitled  to  benefits  may  petition  County  or  Probate  Court 
for  leave  to  have  it  paid  in  a  lump  sum,  and  if  proper  showing  is  made, 
court  may  order  amount  of  compensation  due,  paid  in  lump  sum. 

(9)  The  proposed  law  to  apply  to  all  employers  of  labor,  who  have 
more  than  five  persons  employed  at  one  time. 

PUBLIC  MEETINGS. 

The  public  meetings  were  largely  attended  and  the  outline  of  the  Com- 
mission generally  well  received.  Many  expressions  were  heard  as  to  the 
acceptability  of  a  measure  based  on  the  general  theory  of  workmen's  com- 
pensation. 

A  spirit  of  criticism  and  hostility  developed  in  a  pronounced  form 
during  the  public  meetings  held  in  Chicago,  August  24th  and  25th.  Four 
meetings  were  held  and  a  general  invitation  issued  to  take  part  in  the  debate. 
Additional  meetings  were  arranged  for  the  convenience  of  special  organiza- 
tions of  employers  and  employes. 

With  the  resumption  of  executive  sessions,  the  committee  took  up  the 
first  draft  of  a  compensation  measure.  The  bill  outlined  the  work  of  other 
commissions  and  embraced  views  expressed  by  prominent  sociologists,  busi- 
ness men,  labor  officials,  and  the  public. 

Changes  were  offered  from  time  to  time  and  with  a  redraft  of  the  bill 
the  Commission  remained  in  session  almost  continuously  in  an  effort  to  adjust 


22  EMPLOYERS'  LIABILITY  COMMISSK  >X 

the  terms  of  the  measure  to  the  wishes  of  the  interests  represented  on  the 
Commission. 

The  final  revision  of  the  bill  is  given  herewith  in  full,  together  with 
the  vote  of  the  twelve  commissioners.  As  it  appeared  impossible  to  secure 
for  the  bill  a  majority  vote  on  each  side,  no  further  effort  was  made  to 
develop  and  finish  the  details  of  the  measure.  The  draft  is -merely  sub- 
mitted as  an  evidence  of  how  far  the  Commission  was  able  to  get  before  final 
disagreement,  and  is  included  in  this  report  with  the  hope  that  it  will  be  of 
service  to  those  who  may  be  called  upon  to  solve  this  problem  in  the  future. 

A  BILL 

For  an  Act  to  promote  the  general  welfare  of  the  people  of  this  State,  by 
providing  compensation  for  accidental  injuries  or  death  caused  in  the 
course  of  employment. 

Section  1.  Be  it  enacted  by  the  people  of  the  State  of  Illinois,  repre- 
sented in  the  General  Assembly :  That  any  employer  in  this  State  may  elect 
to  provide  and  pay  compensation  for  injuries  sustained  by  any  employe  aris- 
ing out  of  and  in  the  course  of  the  employment  according  to  the  provisions  of 
this  Act,  and  thereby  relieve  himself  from  liability  for  the  recovery  of  dam- 
ages except  as  herein  provided.  If,  however,  any  such  employer  shall  elect 
not  to  provide  and  pay  the  compensation  according  to  the  provisions  of  this 
Act  he  shall  not  escape  liability  for  injuries  sustained  by  his  employes  arising 
out  of  and  in  the  course  of  their  employment  by  alleging  or  proving  in  any 
action  brought  against  such  employer : 

1.  That  the  employe  either  expressly  or  implicitly  assumed  the  risk  of  the 
hazard  complained  of,  or, 

2.  That  the  injury  or  death  was  caused  in  whole  or  in  part  by  the  neg- 
ligence of  a  fellow  servant. 

Every  such  employer  is  presumed  to  have  elected  to  provide  and  pay  the 
compensation  according  to  the  provisions  of  this  Act  unless  and  until  notice 
in  writing  of  an  election  to  the  contrary  is  filed  with  the  State  Bureau  of 
Labor  Statistics.  Such  employer,  however,  shall  not  be  entitled  to  any  of  the 
privileges  or  advantages  specified  herein  until  a  notice  in  writing  of  an  elec- 
tion to  provide  such  compensation  has  been  filed  with  the  State  Bureau  of 
Labor  Statistics  on  blanks  furnished  by  it  for  such  purpose. 

Sec.  2.  The  filing  of  notice  of  an  election  to  provide  such  compensation 
as  aforesaid  shall  constitute  an  acceptance  of  all  the  provisions  of  this  Act, 
and  such  employer  shall  be  bound  thereby  as  to  all  his  employes  for  a  term 
of  one  year  and  for  terms  of  each  year  thereafter  unless  a  notice  to  the  con- 
trary shall  have  been  given  to  the  Bureau  of  Labor  Statistics  and  to  all  em- 
ployes in  said  employment  by  posting  in  the  plant,  shop,  office  or  place  of  work 
at  least  sixty  days  prior  to  the  expiration  of  any  such  annual  term:  Pro- 
vided, That  when  an  injury  to  an  employe  is  due  to  the  serious  and  wilful 
misconduct  of  that  employe,  any  compensation  claimed  in  respect  of  that 
injury  shall  be  disallowed. 

Sec.  3.  In  the  event  that  any  employer  elects  to  provide  and  pay  the 
compensation  provided  in  this  Act  and  files  notice  of  such  election  with  the 
Bureau  of  Labor  Statistics,  and  thereby  becomes  bound  to  provide  and  pay  such 


EMPLOYERS'  LIABILITY  COMMISSION  23 

compensation  according  to  the  provisions  of  this  Act,  then  every  employe  of 
such  employer,  as  a  part  of  his  contract  of  hiring,  shall  be  deemed  to  have 
accepted  all  the  provisions  of  this  Act  and  shall  be  bound  thereby  unless 
after  thirty  days  and  prior  to  forty-five  days  after  such  hiring  he  shall  notify 
his  employer  in  writing  to  the  contrary :  Provided,  however,  that  before  any 
such  employee  shall  be  so  bound  by  the  provisions  of  this  Act  his  employer 
shall  either  furnish  to  such  employe,  personally,  at  the  time  of  his  hiring  or 
post  in  a  conspicuous  place  in  the  room  or  place  where  such  employee  is  to 
be  employed,  a  statement  in  a  language  which  such  employee  is  able  to  under- 
stand of  the  compensation  provisions  of  this  Act,  if  such  employer  has  ac- 
cepted the  provisions  of  this  Act  as  herein  provided,  which  notice  shall  also 
include  a  notice  to  the  employee  that  the  employer  has  accepted  the  provisions 
hereof.  Every  employee  whose  contract  of  hiring  is  in  force  at  the  time  his 
employer  elects  to  pay  the  compensation,  and  who  continues  to  work  for  such 
employer,  shall  be  deemed  thereby  to  have  accepted  the  provisions  of  this 
Act,  and  shall  be  bound  thereby  unless  he  files  a  notice  in  writing  to  the 
contrary  with  his  employer  after  thirty  days  and  prior  to  forty-five  days 
thereafter :  Providing  such  employer  furnishes  or  posts  the  statement  of  the 
compensation  provisions  of  this  Act  and  his  notice  of  acceptance  thereof  as 
herein  provided. 

Sec.  4.  No  common  law  or  statutory  right  to  recover  damages  for  injuries 
or  death  sustained  by  any  employee  while  engaged  in  the  line  of  his  duty  as 
such  employee,  other  than  the  compensation  herein  provided,  shall  be  avail- 
able to  any  employee  who  has  accepted,  according  to  Section  3,  the  provisions 
of  this  Act,  or  to  any  one  wholly  or  partially  dependent  upon  him  or  legally 
responsible  for  his  estate ;  Provided,  that  when  the  injury  to  the  employee  was 
caused  by  the  willful  failure  of  the  employer  to  comply  with  statutory  safety 
regulations,  nothing  in  this  Act  shall  affect  the  present  civil  liability  of  the 
employer. 

Sec.  5.  The  amount  of  compensation  which  the  employer  shall  pay  if  he 
elects  the  provisions  of  this  Act,  as  provided  in  Sections  one  (1)  and  two  (2) 
for  injury  to  the  employee  which  results  in  death,  shall  be: 

a.  If  the  employee  leaves  any  widow,  child  or  children,  or  parents,  or 
other  lineal  heirs  to  whose  support  he  had  contributed  within  five  years  pre- 
vious to  the  time  of  his  death,  a  sum  equal  to  three  times  the  average  annual 
earnings  of  the  employee,  but  not  less  in  any  event,  than  One  Thousand  Five 
Hundred  Dollars,  and  not  more  in  any  event  than  Three  Thousand  Dollars. 
Any  weekly  payments  other  than  necessary,  medical  or  surgical  fees  shall  be 
deducted  in  ascertaining  such  amount  payable  on  death. 

b.  If  the  employee  leaves  collateral  heirs  dependent  upon  his  earnings, 
such  a  percentage  of  the  sum  provided  in   Section  A  as  the  contributions 
which  deceased  made  to  the  support  of  these  dependents  bore  to  his  earnings 
at  the  time  of  his  death. 

c.  If  the  employee  leaves  no  widow,  child  or  children,  parents  or  lineal 
or  collateral  heirs  dependent  upon  his  earnings,  a  sum  not  to  exceed  One  Hun- 
dred Fifty  Dollars  ($150.00)  to  be  paid  to  his  personal  representative. 

All  compensation  provided  for  in  this  Section  to  be  paid  in  case  the  injury 
results  in  death  shall  be  paid  for  the  first  six  months  in  installments  at  the 
same  intervals  and  in  the  same  amounts  that  the  wages  or  earnings  of  em- 


24  EMPLOYERS'  LIABILITY  COMMISSION 

ployee  were  paid  while  he  was  living,  and  after  the  expiration  of  such  period 
of  six  months  the  balance  of  the  compensation  then  due  shall  be  paid  either  in 
installments  as  aforesaid  or  in  a  lump  sum,  at  the  option  of  the  person  en- 
titled to  such  compensation :  Provided,  That  if  such  compensation  is  paid  in 
installments  as  herein  provided  and  it  shall  not  be  feasible  to  pay  the  same 
at  the  same  intervals  as  wages  or  earnings  were  paid,  then  the  installments 
shall  be  paid  weekly. 

Sec.  6.     The  amount  of  compensation  which  the  employer  shall  provide 
and  pay  for  injury  to  the  employee  resulting  in  disability  shall  be : 

a.  Necessary  medical  and  surgical  treatment  in  all  cases  at  the  time  of 
the  accident  and  as  long  thereafter  as  necessary,  but  not  to  exceed  ninety  (90) 
days,  including  medicine  and  other  means  of  treatment  and  all  reasonable 
facilities,  such  as  the  first  set  of  apparatus,  artificial  limbs,  crutches  and 
trusses  to  aid  in  the  success  of  the  treatment  and  to  diminish  the  effects  of 
the  injury. 

b.  If  the  period  of  disability  lasts  for  more  than  one  week,  and  such  fact 
is  determined  by  the  physician  or  physicians,  as  provided  in  Section  8,  com- 
pensation beginning  on  the  day  the  injured  employee  leaves  work  as  a  result 
of  the  accident,  and  as  long  as  the  disability  lasts,  or  until  the  amount  of 
compensation  paid  equals  the  amount  payable  as  a  death  benefit. 

c.  If  the  period  of  disability  does  not  last  more  than  one  week  from  the 
day  the  injured  employee  leaves  work  as  the  result  of  the  injury,  no  com- 
pensation shall  be  paid. 

d.  In  case  after  the  injury  has  been  received  it  shall  appear  upon  medical 
examination  as  provided  for  by  Section  8,  that  the  employee  has  been  par- 
tially, though  permanently  incapacitated  from  pursuing  his  usual  and  cus- 
tomary line  of  employment,  he  shall  receive  compensation  equal  to  one-half  the 
difference  between  the  average  weekly  wages  which  he  earned  before  the 
accident,  and  the  average  weekly  amount  which  he  is  earning,  or  is  able  to 
earn  in  some  suitable  employment  or  business  after  the  accident,   if  such 
employment  is  secured;  Provided,  that  where  the  injury  shall  be  of  a  character 
set  forth  in  the  following  scale,  the  employee  shall  receive  the  compensation 
named : 

(1)  If  the  injury  causes  the  immediate  severing  of,  or  necessitates  the 

amputation  of  a  hand  or  foot,  at  or  above  the  wrist  or  ankle :  one 
and  one-half  years'  average  wages,  but  in  no  event  less  than  $750.00 
nor  more  than  $1,500.00. 

(2)  If  the  injury  results  in  the  total  and  irrecoverable  loss  of  the  sight 

of  one  eye:  three-fourths  of  one  year's  wages,  but  not  less  than 
$375.00,  nor  more  than  $750.00. 

e.  In  the  case  of  complete  disability  which  renders  the  employee  wholly 
and  permanently  incapable  of  work,  compensation  for  the  first  eight  years 
after  the  day  the  injury  was  received,  equal  to  50%  of  his  average  weekly 
earnings,  but  not  less  than  $5.00  nor  more  than  $10.00  per  week.    If  complete, 
disability  continues  after  the  expiration  of  the  eight  years,  then  a  compensa- 
tion during  life,  equal  to  8%  of  the  death  benefit  which  would  have  been 
payable  had  the  accident  resulted  in  death.     Such  compensation  shall  not  be 
less  than  $10.00  per  month  and  shall  be  payable  monthly.     In  case  death 
occurs  before  the  total  of  the  weekly  payments  equals  the  amount  payable 


EMPLOYERS'  LIABILITY  COMMISSION  25 

as  a  death  benefit,  as  provided  iii  Section  5,  Article  A,  then  in  case  the 
employee  leaves  any  widow,  child  or  children,  or  parents,  or  other  lineal  heirs, 
they  shall  be  paid  the  difference  between  the  compensation  for  death  and  the 

sum  of  the  weekly  payments,  but  in  no  case  shall  this  sum  be  less  than  $ 

Provided,  That  after  compensation  has  been  paid  at  the  specified  rates  for  a 
term  of  at  least  six  months  the  employee  shall  have  the  option  to  demand  a 
lump  sum  payment  for  the  difference  between  the  sum  of  the  weekly  pay- 
ments received  and  the  four  years'  compensation  to  which  he  was  entitled 
when  such  permanent  disability  has  been  definitely  determined.  For  the  pur- 
pose of  this  Section,  the  total  and  irrecoverable  loss  of  the  sight  of  both 
eyes,  the  loss  of  both  feet  at  or  above  the  ankle,  the  loss  of  both  hands 
at  or  above  the  wrist,  the  loss  of  one  hand  and  one  foot,  an  injury  to  the  spine 
resulting  in  permanent  paralysis  of  the  legs  or  arms,  and  the  fracture  of  the 
skull  resulting  in  incurable  imbecility  or  insanity,  shall  be  considered  com- 
plete disability.  These  specific  cases  of  complete  disability  shall  not,  however, 
be  construed  as  excluding  other  cases. 

In  fixing  the  amount  of  the  disability  payments,  regard  shall  be  had  to 
any  payment,  allowance  or  benefit  which  the  workman  may  have  received 
from  the  employer  during  the  period  of  his  incapacity,  except  the  expense  of 
necessary  medical  or  surgical  treatment.  In  no  event,  except  in  case  of  com- 
plete disability  as  defined  above,  shall  any  weekly  payment  payable  under  the 
compensation  plan  herein  provided  exceed  Ten  Dollars  per  week,  or  extend 
over  a  period  of  more  than  six  years  from  the  date  of  the  accident.  In  case 
an  injured  employee  shall  be  mentally  incompetent  at  the  time  when  any 
right  or  privilege  accrues  to  him  under  such  plan,  a  conservator,  or  guardian 
of  the  incompetent,  appointed  pursuant  to  lawr,  may,  on  behalf  of  such  incom- 
petent, claim  and  exercise  any  such  right  or  privilege  with  the  same  force 
and  effect  as  if  the  employee  himself  had  been  competent  and  had  claimed  or 
exercised  any  such  right  or  privilege;  and  no  limitations  of  time  herein  pro- 
vided for  shall  run  so  long  as  said  incompetent  employee  has  no  conservator 
or  guardian. 

Sec.  7.  The  basis  for  computing  the  compensation  provided  for  in  Sec- 
tions 5  and  6  shall  be  as  follows  : 

(1)  The  compensation  shall  be  computed  on  the  basis  of  the  annual  earn- 
ings which  the  injured  persons  received  as  salary,  wages  or  earnings  in  that 
employment  during  the  year  next  preceding  the  injury. 

(2)  The  annual  earnings,  if  not  otherwise  determined,  shall  be  regarded 
as  three  hundred  times  the  average  daily  earnings  in  such  computation ;  as  to 
workmen  in  employments  in  which  it  is  the  custom  to  operate  for  a  part  of  the 
whole  number  of  working  days,  such  number  shall  be  used  instead  of  300  as  a 
basis  for  computing  the  annual  earnings. 

(3)  If  the  injured  person  has  not  been  engaged  in  the  employment  for  a 
full  year  immediately  preceding  the  accident,  the  compensation  shall  be  com- 
puted according  to  the  annual  earnings  which  persons  of  the  same  class  in 
the  same  or  in  neighboring  employments  of  the  same  kind  have  earned  during 
such  period.    And  if  this  basis  of  computation  is  impossible,  or  should  appear 
to  be  unreasonable,  three  hundred  times  the  amount  which  the  injured  person 
earns  on  an  average  on  those  days  when  he  wras  working  during  the  year  next 
preceding  the  accident  shall  be  used  as  a  basis  for  the  computation. 


26  EMPLOYERS'  LIABILITY  COMMISSION 

(4)  In  the  case  of  injured  persons  who  earn  either  no  wage  or  less  than 
three  hundred  times  the  usual  daily  wage  or  earnings  of  the  adult  day  laborers 
of  that  locality,  the  yearly  wage  shall  be  reckoned  as  three  hundred  times  this 
average  daily  local  wage. 

(5)  In  computing  the  compensation  to  be  paid  to  employees  who,  before 
the  accident  were  already   disabled,   and  drawing  compensation   under   the 
terms  of  this  Act,  the  additional  compensation  shall  be  apportioned  according 
to  the  proportion  of  incapacity  and  the  disability  which  existed  before  such 
accident  or  injury,  and  in  apportioning  such  compensation  the  earnings  prior 
to  the  first  injury  shall  be  considered  in  relation  to  the  earnings  prior  and  at 
the  time  of  the  injury  for  which  compensation  is  being  computed. 

Sec.  8.  Any  employee  entitled  to  receive  weekly  payments  shall  be  re- 
quired, if  requested  by  the  employer,  to  submit  himself  for  examination  by  a 
duly  qualified  medical  practitioner  or  surgeon  provided  and  paid  for  by  the 
employer,  at  a  time  and  p.lace  reasonably  convenient  for  the  employee,  as 
soon  as  practicable  after  the  injury  and  also  one  week  after  the  injury  and 
thereafter  at  intervals  not  oftener  than  once  in  six  weeks,  which  examina- 
tion shall  be  for  the  purpose  of  determining  the  nature,  extent  and  duration 
of  the  injury  received  by  the  employee,  and  for  the  purpose  of  adjusting  the 
compensation  which  may  be  due  the  employee  from  time  to  time  for  disability 
according  to  the  provisions  of  Sections  5  and  6  of  this  Act ;  Provided,  however, 
that  such  examination  shall  be  made  in  the  presence  of  a  duly  qualified 
medical  practitioner  or  surgeon  provided  and  paid  for  by  the  employee,  if  such 
employee  so  desires,  and  in  the  event  of  disagreement  between  said  medical 
practitioners  or  surgeons  as  to  the  nature,  extent  or  duration  of  said  injury 
or  disability,  the  Judge  of  the  Probate  Court  in  Cook  County  and  the  County 
Court  in  counties  outside  of  Cook  County,  in  the  county  where  the  employee 
resided  or  was  employed  at  the  time  of  the  injury,  shall  within  six  days 
after  petition  filed  with  such  Court  for  that  purpose,  select  a  third  medical 
practitioner  or  surgeon  and  the  majority  report  of  such  three  physi- 
cians as  to  the  nature,  extent  and  probable  duration  of  such  injury  or 
disability  shall  be  used  for  the  purpose  of  estimating  the  amount  of  com- 
pensation payable  to  such  beneficiary  under  this  Act.  If  the  employee  re- 
fuses so  to  submit  himself  to  examination  or  unnecessarily  obstructs  the 
same,  his  right  to  compensation  payments  shall  be  temporarily  suspended  until 
such  examination  shall  have  taken  place,  and  no  compensation  shall  be  pay- 
able under  this  Act  during  such  period. 

Sec.  9.  Any  question  of  law  or  fact  arising  in  regard  to  the  application 
of  this  law  in  determining  the  compensation  payable  hereunder  shall  be  deter- 
mined either  by  agreement  of  the  parties  or  by  arbitration  as  herein  provided. 
Ii^  case  any  such  question  arises  which  cannot  be  settled  by  agreement,  the 
employee  and  employer  shall  each  select  a  disinterested  party  and  the  Judge 
of  the  Probate  Court  in  Cook  County  and  of  the  County  Court  in  counties 
outside  of  Cook  County  shall  appoint  a  third  disinterested  party,  such  per- 
sons to  constitute  a  board  of  arbitrators  for  the  purpose  of  hearing  and  de- 
termining all  such  disputed  questions  of  law  or  fact  arising  in  regard  to  the 
application  of  this  law  in  determining  the  compensation  payable  hereunder, 
and  it  shall  be  the  duty  of  both  employer  and  employee  to  submit  to  such  board 
of  arbitrators  not  later  than  ten  days  after  the  selection  and  appointment  of 


EMPLOYERS'  LIABILITY  COMMISSION  27 

such  arbitrators  all  facts  or  evidence  which  may  be  in  their  possession  or 
under  their  control  relating  to  the  questions  to  be  determined  by  said  arbi- 
trators; and  said  board  of  arbitrators  shall  hear  all  the  evidence  submitted 
by  both  parties  and  they  shall  have  access  to  any  books,  papers  or  records 
of  either  the  employer  or  the  employee  showing  any  facts  which  may  be  ma- 
terial to  the  questions  before  them,  and  they  shall  be  empowered  to  visit  the 
place  or  plant  where  the  accident  occurred,  to  direct  the  injured  employee 
to  be  examined  by  a  regular  practicing  physician  or  surgeon,  and  to  do  all 
other  acts  reasonably  necessary  for  a  proper  investigation  of  all  matters  in 
dispute.  A  copy  of  the  report  of  the  arbitrators  in  each  case  shall  be  pre- 
pared and  filed  by  them  with  the  State  Bureau  of  Labor  Statistics,  and  shall 
be  binding  upon  both  the  employer  and  employee  except  for  fraud  and  mistake. 

Sec.  10.  The  term  "employer,"  as  used  in  this  Act,  shall  be  held  to  in- 
clude any  person,  firm  or  private  corporation  transacting  business  in  this 
State  that  has  an  employee  in  his  or  its  service  and  that  has  elected  accord- 
ing to  sections  1  and  2  of  this  Act  to  pay  the  compensation  provided  for  by 
this  Act;  and  any  principal  contract  or  shall  be  held  to  be  an  employer  and 
shall  be  liable  to  pay  compensation  for  injuries  to  the  employees  of  any 
sub-contractor,  whether  first,  second,  or  other  sub-contractor  or  engaged  in,  on 
or  about  the  premises  on  which  said  principal  contractor  has  engaged  to 
perform  any  work  in  the  same  manner  and  to  the  same  extent  as  those  said 
employees  had  been  immediately  been  employed  by  him.  Any  principal  con- 
tractor liable  to  pay  compensation  under  this  section,  may  be  indemnified 
by  any  sub-contractor  who  would  have  been  liable  to  pay  compensation  to 
such  employees  independent  of  the  provisions  of  this  section. 

Sec.  11.  The  term  "employee,"  as  used  in  this  Act,  shall  be  held  to 
include  any  person  who  has  engaged  to  work  or  render  any  service  for  an 
employer  under  a  contract  of  service  or  apprenticeship,  whether  by  way  of 
manual  labor,  clerical  work  or  otherwise,  and  whether  the  contract  is  ex- 
pressed or  implied,  oral  or  in  writing,  except  that  minors  not  legally  per- 
mitted to  work  under  the  laws  of  this  State,  shall  not  be  considered  within 
the  provisions  of  this  Act  and  minors  not  so  excepted  are,  for  the  purposes  of 
this  Act,  to  be  considered  the  same  and  to  have  the  like  power  of  contracting 
as  though  they  were  of  full  age. 

Sec.  12.  Persons  whose  employment  is  of  a  casual  nature  and  who  are 
employed  otherwise  than  for  the  purpose  of  the  employer's  trade  or  business 
are  not  included  in  the  foregoing  definition. 

Sec.  13.  Any  persons  entitled  to  payments  under  the  compensation  provi- 
sions of  this  Act  against  any  employer  shall  have  the  same  preferential  claim 
therefor  against  the  property  of  the  employer  as  is  now  allowed  by  law  for  a 
claim  by  such  person  against  such  employer  for  unpaid  wages  or  personal 
services,  such  preference  to  prevail  against  wage  claims  of  all  other  employees 
not  entitled  to  compensation  for  injuries,  and  the  payments  due  under  such 
compensation  provisions  shall  not  be  subject  to  attachment,  or  to  levy,  or 
execution  and  satisfaction  of  debts  except  to  the  same  extent  and  in  the  same 
manner  as  wages  or  earnings  for  personal  services  are  now  subject  to  levy  and 
execution  under  the. -laws  of  this  State,  and  shall  not  be  assignable.  Any 
right  to  receive  compensation  hereunder  shall  be  extinguished  by  the  death 
of  the  person  entitled  thereto,  subject  to  the  provisions  of  this  Act  relative  to 


28  EMPLOYERS'  LIABILITY  COMMISSION 


No  claim  of 


ays 
aw 


compensation  for  death  received  in  the  course  of  employment, 
any  attorney  at  law  for  any  contingent  interest  in  any  recovery  for  services 
in  securing  any  recovery  under  this  Act  shall  be  an  enforceable  lien  thereon 
unless  the  amount  of  the  same  be  approved  in  writing  by  a  judge  of  a  court 
of  record,  or  in  case  the  same  is  tried  in  any  court,  before  the  judge  presiding 
at  such  trial. 

Sec.  14.    Any  contract  or  agreement  made  by  any  employee  or  any  other 
beneficiary  of  any  claim  under  the  provisions  of  this  Act,  within  seven  days 
after  the  injury,  with  any  employer  or  his  agent  or  with  any  attorney  at  lai 
with  reference  to  the  prosecution  or  settlement  of  such  claim  shall  be  pi 
sumed  to  be  fraudulent. 

Sec.  15.  No  such  employee  or  beneficiary  shall  have  power  to  waive  any 
of  the  provisions  of  this  Act  in  regard  to  the  amount  of  compensation  which 
may  be  payable  to  such  employee  or  beneficiary  hereunder. 

Sec.  16.  No  proceedings  for  compensation  under  this  Act  shall  be  main- 
tained unless  notice  of  the  accident  has  been  given  to  the  employer  as  soon  as 
practicable  after  the  happening  thereof,  and  during  such  disability,  and  unless 
claim  for  compensation  has  been  made  within  six  months  from  the  occur- 
rence of  the  accident ;  or  in  case  of  the  death  of  the  employee  or  in  the 
event  of  his  physical  or  mental  incapacity  within  six  months  after  such  death 
or  removal  of  such  physical  or  mental  incapacity,  or  in  the  event  that  pay- 
ments have  been  made  under  the  provisions  of  this  Act  within  six  months  after 
such  payments  have  ceased.  No  want  or  defect  or  inaccuracy  of  such  notice 
shall  be  a  bar  to  the  maintenance  of  proceedings  by  the  employee  unless 
the  employer  proves  that  he  is  unduly  prejudiced  in  such  proceedings  by 
such  want,  defect  or  inaccuracy.  Notice  of  the  accident  shall,  in  substance, 
apprise  the  employer  of  the  claim  for  compensation  made  by  the  employee 
and  shall  state  the  name  and  address  of  the  employee  injured,  the  approximate 
date  and  place  of  the  accident,  and  in  simple  language  the  cause  thereof, 
if  known;  which  notice  may  be  served  personally  or  by  registered  letter 
addressed  to  the  employer  at  his  last  known  residence  or  place  of  business; 
provided,  that  the  failure  on  the  part  of  any  person  entitled  to  such  com- 
pensation to  give  such  notice  shall  not  relieve  the  employer  from  his  liability 
for  such  compensation  when  the  facts  and  circumstances  of  such  accident 
are  known  to  such  employer  or  his  agent. 

Sec.  17.  The  compensation  herein  provided  shall  be  the  measure  of  the 
responsibility  which  the  employer  has  assumed  for  injuries  or  death  that  may 
occur  to  employees  in  his  employment,  and  it  shall  not  be  in  any  way  re- 
duced by  contributions  from  employees. 

Sec.  18.  The  provisions  of  this  Act  shall  not  be  construed  so  as  to  dis- 
turb the  organization  of  any  existing  mutual  aid  or  benefit  association  or 
society  to  which  the  employer  contributes  an  amount  sufficient  to  insure  to 
the  employee  or  other  beneficiary  the  compensation  herein  provided,  or  to 
prevent  the  organization  of  any  mutual  benefit  association  or  insurance  com- 
pany for  the  purpose  of  insuring  the  compensation  herein  provided  and  of 
paying  additional  accident  or  sick  benefits  for  which  the  employee  may  con- 
tribute, providing  such  mutual  aid  or  benefit  associations  or  insurance  com- 
panies comply  with  the  laws  of  this  State. 


EMPLOYERS'  LIABILITY  COMMISSION  29 

Sec.  19.  Any  person  who  shall  become  entitled  to  compensation  under  the 
provisions  of  this  Act  shall,  in  the  event  of  his  inability  to  recover  such  com- 
pensation from  the  employer  on  account  of  his  insolvency  or  other  cause, 
be  subrogated  to  all  the  rights  of  such  employer  against  any  insurance  com- 
pany or  association  which  may  have  insured  such  employer  against  loss 
growing  out  of  the  compensation  required  by  the  provisions  of  this  Act  to 
be  paid  by  such  employer,  and  in  such  case  only  a  payment  of  the  compensa- 
tion that  has  accrued  to  the  person  entitled  thereto  in  accordance  with  the 
provisions  of  this  Act  shall  relieve  such  insurance  company  from  such  lia- 
bility. 

Sec.  20.  It  shall  be  the  duty  of  every  employer  within  the  provisions  of 
this  Act  to  send  to  the  Secretary  of  the  State  Bureau  of  Labor  Statistics  in 
writing  an  immediate  report  of  all  accidents  or  injuries  arising  out  of  or 
in  the  course  of  the  employment  and  resulting  in  death;  it  shall  also  be 
the  duty  of  every  such  employer  to  report  between  the  15th  and  25th  of  each 
month  to  the  Secretary  of  the  State  Bureau  of  Labor  Statistics  all  accidents 
or  injuries  for  which  compensation  has  been  paid  in  accordance  with  the 
scale  of  compensation  provided  for.  in  this  Act,  which  accidents  or  injuries 
entail  a  loss  to  the  employee  of  more  than  one  week's  time,  and  in  case  the 
injury  results  in  permanent  disability,  such  report  shall  be  made  as  soon  as  it 
is  determined  that  such  permanent  disability  has  resulted  or  will  result  from 
such  injury ;  all  such  reports  shall  state  the  date  of  the  injury,  including  the 
time  of  day  or  night,  the  nature  of  the  employer's  business,  the  age,  sex  and 
conjugal  condition  of  the  injured  person,  the  specific  occupation  of  the 
injured  person,  the  direct  cause  of  injury,  and  the  nature  of  the  accident, 
the  nature  of  the  injury,  the  length  of  disability  and,  in  case  of  death,  the 
length  of  disability  before  death,  the  wages  of  the 'injured  person,  whether 
compensation  has  been  paid  to  the  injured  person  or  to  his  legal  repre- 
sentative or  his  heirs  or  next  of  kin,  the  amount  of  compensation  paid,  the 
amount  paid  for  physician's,  surgeon's  and  hospital  bill  and  by  whom  paid, 
and  the  amount  paid  for  funeral  or  burial  expense,  if  known. 

Sec.  21.  The  invalidity  of  any  portion  of  this  Act  shall  in  no  way  affect 
the  validity  of  any  other  portion  thereof  which  can  be  given  effect  without 
such  invalid  part. 

Sec.  22.  This  Act  shall  take  effect  and  be  in  force  from  and  after  the 
-  day  of  -  — ,  1911. 

THE  COMMISSION  FAILS  TO  AGREE. 

On  final  vote,  the  bill  failed  to  receive  the  vote  of  a  majority  on  each 
side.  The  labor  members  submitted  written  statements  of  their  objections 
to  the  bill,  which  are  attached  hereto. 

The  employers  objected  to  the  last  provision  of  Section  IV  on  the  ground 
that  it  wrould  open  up  the  way  to  endless  litigation  in  the  case  of  coal  mines 
which  operate  under  a  special  statute  whose  provisions  are  so  general  as  to 
be  open  always  to  several  constructions.  Objection  on  the  part  of  the  em- 
ployers was  also  registered  against  the  amount  of  compensation  and  the 
pension  plan  in  cases  of  permanent  and  total  disability.  Statement  was  also 
submitted  that  the  surface  and  elevated  railroads  operating  under  a  flat 
rate  of  5c  are  situated  differently  from  other  industries,  in  that,  in  no  way, 
can  the  burden  of  the  compensation  be  put  upon  the  consumer,  but  can  be 


30  EMPLOYERS'  LIABILITY  COMMISSION 

drawn  from  the  5c  rate,  only  by  the  application  of  an  economy  in  some  other 
direction,  a  thing  that  is  becoming  annually  more  and  more  difficult. 

The  employers  presented  a  letter  addressed  to  the  Governor  of  the  State 
in  answer  to  the  letter  of  the  Chicago  Federation  of  Labor,  presented  by 
Messrs.  Boyle  and  Flora.  Both  of  these  letters  are  appended. 


STATEMENTS  OF  MEMBERS 

BOYLE  AND  FLORA. 

We  decline  to  sign  any  Compensation  Act,  because,  in  our  opinion,  any 
Act  of  that  kind  should  be  preceded  by  a  modification  of  the  employers'  de- 
fenses. Our  position  in  this  matter  is  fully  set  forth  in  the  letter  of  the 
Chicago  Federation  of  Labor,  hereto  attached. 

M.  J.  BOYLE, 
JNO.  C.  FLORA. 

WRIGHT,  GORMAN,  CARR  AND  GOLDEN. 

September  14,  1910. 
Employers'  Liability  Commission : 

Gentlemen :  The  undersigned  members  of  the  Commission,  representing 
organized  labor,  wish  to  file  our  exceptions  to  the  pending  compensation 
measure,  as  follows : 

We  honestly  and  conscientiously  believe  in  the  theory  of  an  adequate 
compensation  bill,  whereby  the  industry  will  bear  the  burden  of  accidents 
incident  thereto. 

We  believe  that  such  an  enactment  should  be  made  compulsory  on  both 
employer  and  employe,  that  the  defenses  of  the  employer  consisting  of  the 
fellow  servant  rule  and  assumption  of  risk  should  be  abrogated,  and  that 
the  elective  feature  contained  in  the  present  draft  would  prove  unsatisfactory 
to  the  workers  of  the  State. 

The  terms  of  the  present  draft  are  not  adequate  to  provide  proper  com- 
pensation. We  believe  the  amounts  specified  (three  years'  wages  for  death 
and  four  years'  wages  for  complete  disability)  should  be  increased  to  an 
amount  commensurate  with  the  necessities  of  the  injured  workman  and  his 
family. 

The  provision  specifying  compensation  as  based  on  "annual  earnings" 
should  read  daily  earnings,  and  the  bill  should  remove  the  question  as  to 
what  constitutes  a  day's  work. 

We  advocate  the  removal  of  any  phrase  wherein  any  differences  of  con- 
struction may  be  had  and  make  the  terms  \s  automatic  as  consistent  with 
the  intent  of  such  a  law. 

Respectfully  submitted, 

EDWIN  R.  WRIGHT, 
DANIEL  J.  GORMAN, 
PATRICK  CARR, 
GEORGE  GOLDEN. 


EMPLOYERS'  LIABILITY  COMMISSION  31 

LETTER    OF    CHICAGO    FEDERATION    OF    LABOR,    SUBMITTED    BY 
MESSRS.  BOYLE  AND  FLORA. 

To  the  Employers'  Liability  Commission :  Gentlemen — At  the  meeting  of 
the  Chicago  Federation  of  Labor  held  on  Sunday,  Sept.  4,  1910,  the  ques- 
tion of  endorsing  or  rejecting  the  plan  of  compensation,  as  outlined  by  the 
Commission  which  was  created  by  an  Act  of  the  special  session  of  the  Illinois 
Legislature,  was  referred  to  the  Executive  Board  and  the  Legislative  Com- 
mittee of  this  Federation  for  final  consideration,  investigation  and  action. 

In  view  of  the  above  action,  the  Executive  Board  and  the  Legislative 
Committee  of  the  Chicago  Federation  of  Labor  met  on  Sunday,  Sept.  12,  and 
after  due  and  careful  consideration  submit  the  following : 

For  years  and  years  organized  labor  had  repeatedly  urged  the  Illinois 
Legislature  to  enact  a  law  which  would  establish  the  responsibility  of  the 
employer  to  his  employes,  and  each  and  every  effort  along  this  line  failed. 

The  employers  of  this  State  have  three  remedies  at  law,  known  as  the 
Fellow  Servant  Rule,  Assumption  of  Risk,  and  Contributory  Negligence,  and 
as  every  crook  and  hold-up  man  assumes  an  alias,  these  unspeakable 
measures  are  now  known  as  "the  Defense,"  and  with  these  measures  the 
employers  are  practically  immune  under  the  law,  when  accident  or  death 
occurs  among  their  employes.  But  it  goes  without  saying  that  the  money 
the  employers  have  been  able  to  prevent  their  employes  from  recovering  in 
case  of  accident  or  death  by  the  use  of  the  so-called  defenses  is  blood  money, 
pure  and  simple. 

Organized  labor  has  constantly  and  persistently  sought  legislation  which 
would  break  down  these  so-called  defenses  and  place  the  maimed  or  crippled 
workman  or  his  widow  and  children  upon  an  equal  footing  with  the  em- 
ployer before  the  law. 

Organized  labor  realizes  that  under  the  most  favorable  conditions  and 
circumstances  even,  with  the  so-called  defenses  removed,  the  workman  would 
be  at  a  serious  disadvantage  when  seeking  to  recover  damages  from  our 
railroads,  the  Illinois  Steel  Company,  or  the  Beef  Trust,  with  their  unlim- 
ited resources  and  abundance  of  purchased  legal  brains.  But  notwithstand- 
ing that  organized  labor  is  willing  to  take  its  chances  before  the  law;  but 
equality  before  the  law  is  absolutely  impossible  while  the  so-called  defenses 
remain. 

For  years  the  newspapers,  clubs,  the  university,  and  its  professors,  em- 
ployers' associations,  and  the  hordes  of  corporation  lawyers  have  decried  the 
efforts  of  organized  labor  to  secure  an  adequate  Employers'  Liability  Bill, 
and  everyone  who  had  the  temerity  to  advocate  such  legislation  was  denounced 
as  "ignorant,  a  knave,  and  a  detriment  to  the  labor  movement." 

Unlimited  space  and  effort  was  given  to  what  was  called  "industrial 
insurance,"  and  the  interests  nanie'd  herein  loudly  proclaimed  that  industrial 
insurance  was  surely  the  millennium  for  the  workers. 

Organized  labor,  however,  holds  true  to  its  course,  and  in  the  last  ses- 
sion of  legislature  introduced  what  was  known  as  House  Bill  No.  15,  which 
tended  to  establish  the  responsibility  of  the  employer  to  his  employes.  This 
bill  passed  the  House,  but  died  the  usual  death  such  legislation  dies  in  its 
struggle  with  our  lawniaking  body. 


32  EMPLOYERS'  LIABILITY  COMMISSION 


Organized  labor  did  not  feel  discouraged,  much  less  defeated,  so  it  set 
to  work  to  prepare  for  the  next  battle,  and  that  was  to  be  when  the  special 
session  of  the  Legislature*  was  called  to  enact  the  Direct  Primary  Law.  Or- 
ganized labor,  through  various  means,  tried  to  induce  Governor  Deneen  to 
include  in  his  call  for  the  special  session  the  consideration  of  an  Employers' 
Liability  Bill,  but  we  were  given  to  understand  that  the  call  would  be  lim- 
ited absolutely  to  Direct  Primary  legislation.  Organized  labor  was  about 
to  rest  its  case  until  the  next  regular  session  would  come  about.  Then  the 
unlocked  for  happened.  Some  two  hundred  and  fifty  lives  were  snuffed  out 
without  a  moment's  notice  at  Cherry,  111.  The  widows  and  orphans  were 
crying  for  justice.  Public  opinion  was  aroused  and  was  intensified  a  thousand 
times  when  it  was  learned  that  whatever  the  widows  and  orphans  would 
receive  as  a  result  of  their  great  loss  in  this  terrible  calamity  would  be  out 
of  the  goodness  of  heart  of  the  owners  of  the  Cherry  Mine  (the  Chicago, 
Milwaukee  &  St.  Paul  railroad),  and  not  because  the  Great  State  of  Illinois 
had  provided  legislation  for  their  protection. 

The  Administration,  the  Legislature  and  the  interests  were  exposed.  Their 
jack-pot  method  of  juggling  legislation  showed  that  they  failed  to  heed  the 
demands  of  the  toilers  of  the  State.  They  had  denied  the  maimed  and 
crippled,  the  widows  and  the  orphans  the  protection  which  would  come  to 
them  through  the  enactment  of  an  Employers'  Liability  Law.  And  to  further 
prevent  such  humane  and  just  regulation  would  be  denounced  as  criminal, 
so  they  set  to  work  to  cover  up  their  tracks.  The  Governor's  call  for  the 
special  session  was  opened  up  and  it  provided  for  the  appointment  of  an 
Employers'  Liability  Commission  and  other  legislation  to  protect  and  safe- 
guard life  and  limb — and  right  here  is  where  they  put  another  one  over  upon 
us.  Instead  of  calling  the  Legislature  to  consider  an  Employers'  Liability 
Bill  in  the  special  session,  it  was  twisted  to  read,  "to  enact  a  law  to  appoint 
an  Employers'  Liability  Commission,"  and  by  that  twist  of  words  we  were 
denied  employers'  liability  legislation  at  the  special  session. 

Now  then,  when  the  special  session  met  and  had  under  consideration  the 
the  bill  to  appoint  the  Commission,  we  find  the  bill  was  so  worded  as  to  limit 
the  work  of  the  Commission  to  the  consideration  of  compensation  in  case  of 
accident  or  death,  and  this  is  the  first  place  where  we  met  up  with  the 
proposition  of  compensation.  Prior  to  this  industrial  insurance  was  con- 
stantly being  shoved  under  our  nose,  but  the  old  howl  about  industrial  in- 
surance must  have  died,  or  we  were  face  to  face  with  another  victory  of 
public  opinion,  which  now  proclaims  that  each  industry  must  provide  for 
its  human  waste,  and  that  compensation  for  accidents  and  deaths  must  be 
provided  for  by  the  employer.  However,  the  legislation  provided  for  the 
appointment  of  a  Commission,  and  unfortunately  the  Commission  could  not 
see  its  way  clear  to  consider  an  Employers'  Liability  Bill,  but  devoted  itself 
rigidly  to  the  proposition  of  compensation,  which,  to  use  an  old  phrase,  is 
"putting  the  cart  before  the  horse." 

In  January,  1910,  a  meeting  was  held  in  the  office  of  the  Chicago  Fed- 
eration, of  Labor,  where  the  Illinois  State  Federation  of  Labor,  the  United 
Mine  Workers  of  Illinois  and  the  Chicago  Federation  of  Labor  were  repre- 
sented. After  a  lengthy  discussion  as  to  what  Labor  might  hope  for  from 
the  special  session  of  the  Legislature  which  was  then  about  to  convene,  it 


EMPLOYERS'  LIABILITY  COMMISSION  33 

was  decided  that  we  would  not  oppose  the  appointment  of  an  Employers'  Lia- 
bility Commission,  but  that  we  would  endeavor  to  amend  the  bill  in  two  par- 
ticulars. One  amendment  was  that  we  would  try  to  have  the  Commission 
confined  to  three  employers  and  three  employes.  The  other  amendment  was 
that  we  would  try  to  have  the  Commission  report  to  the  Governor  by  Sept.  1, 
1910.  We  also  decided  that  if  the  Commission  did  not  report  a  bill  favorable 
to  Labor,  that  the  three  organizations  represented  would  be  free  to  interview 
and  pledge  candidates  for  the  next  Legislature,  and  the  three  organizations 
would  act  unitedly  for  an  Employers'  Liability  Bill  in  the  next  regular  session. 

The  following  is  a  copy  of  the  agreement  entered  into  between  the  Illinois 
State  Federation  of  Labor,  the  United  Mine  Workers  of  Illinois,  and  the  Chi- 
cago Federation,  of  Labor  at  the  January  meeting,  1910: 

Since  there  has  been  included  in  the  call  for  the  special  session  a  request 
for  the  creation  of  a  Commission  to  consider  the  question  of  an  Employers' 
Liability  Act,  thereby  preventing  the  enactment  of  Employers'  Liability  legis- 
lation at  the  special  session; 

Therefore,  we  agree  to  an  amendment  to  the  Hull  Bill,  providing  that 
the  Commission  be  composed  of  three  employers  and  three  employes,  to  meet 
immediately  after  their  appointment  and  to  report  their  findings  not  later 
than  Sept.  1,  1910  to  the  Governor. 

In  the  event  of  their  failure  to  make  definite  and  final  report  by  Sept.  1, 
1910,  the  Illinois  State  Federation  of  Labor,  the  United  Mine  Workers  of 
Illinois,  and  the  Chicago  Federation  of  Labor  will  act  united  in  the  session 
of  the  Illinois  Legislature  of  1911  for  an  Employers'  Liability  Act." 

The  above  proves  conclusively  that  the  attitude  of  the  three  organizations 
is  absolutely  in  favor  of  an  Employers'  Liability  Law.  If  we  thought  for 
one  moment  that  the  Commission  would  limit  itself  to  the  consideration  of 
compensation,  we  would  not,  under  any  circumstances,  put  a  time  limit  upon 
their  operations.  The  question  of  compensation  is  a  big  one,  and  to  say  that 
the  Commission  would  do  justice  to  the  proposition  in  a  few  months  would 
be  asking  them  to  do  the  impossible. 

On  the  other  hand,  we  felt  sure  then,  and  do  now,  that  an  Employers' 
Liability  Act,  doing  equal  and  even-handed  justice  to  alf  concerned  can  be 
fully  and  thoroughly  considered  in  a  few  months'  time,  because  it  does  not 
need  the  investigation,  research  and  information  necessary  as  when  consid- 
ering compensation.  In  this  connection  it  may  be  well  to  quote  from  a  letter 
on  this  subject,  written  by  Samuel  Gompers,  president  of  the  American  Fed- 
eration of  Labor,  to  the  Chicago  Federation  of  Labor.  Mr.  Gompers  says : 

Washington,  D.  C.,  Dec.  24,  1910. 

Your  favor  of  the  21st  inst.  with  enclosure  came  duly  to  hand,  and  I 
perused  both  with  a  very  great  deal  of  interest.  In  connection  with  the  bill 
introduced  in  the  Legislature  by  Mr.  Charles  Naylor,  let  me  say  that  I  partly 
agree  with  the  action  taken,  that  is,  in  so  far  as  employers'  liability  is  con- 
cerned. There  should  be  no  question  or  division  of  opinion  upon  that  sub- 
ject. Indeed,  there  is  none  among  intelligent,  far-seeing  and  fair-minded  men. 
The  Illinois  Legislature  should  enact  a  liberal  Employers'  Liability  Act  at 
the  special  session  and  then  undertake  an  investigation  with  a  view  of  the 
introduction  of  an  automatic  compensation  law,  for  THAT  view  observers  now 


34  EMPLOYERS'  LIABILITY  COMMISSION 

regard  as  the  most  feasible  and  just  solution  of  the  vocational  ills,  accidents 
and  deaths. 

You  ask  me  to  have  a  bill  drafted  upon  the  question  of  Employers'  Lia- 
bility for  introduction  in  the  Illinois  Legislature  at  its  present  special  session. 
The  subject  of  drafting  a  comprehensive  bill  has  been  under  consideration 
for  several  years,  ad  reports  thereon  made,  particularly  to  the  last  conven- 
tion of  the  A.  F.  of  L.  in  Toronto.  The  convention  directed  that  these  bills 
be  printed,  circulated  and  forwarded  to  the  officers  of  the  State  Federations 
and  central  bodies  with  a  view  of  their  general  introduction  and  the  agita- 
tion for  their  enactment.  I  have  not  yet  had  a  chance  to  have  the  bills 
printed,  but  will  send  you  a  typewritten  copy  in  the  course  of  a  few  days. 

Fraternally  yours, 

(Signed)  SAMUEL  GOMPERS, 

President,  American  Federation  of  Labor. 

The  Chicago  Federation  of  Labor  has  declared  itself  opposed  to  any  kind 
of  compensation  until  such  time  as  we  have  an  Employers'  Liability  Law 
enacted,  and  the  wisdom  of  this  stand  is  shown  in  the  attitude  of  the  em- 
ployers themselves.  They  have  come  to  realize  that  on  account  of  public 
opinion  it  is  possible  that  the  Legislature  will  be  compelled  to  enact  a  law 
which  will  deprive  them  of  so-called  defenses,  and  before  the  so-called  de- 
fenses are  taken  away  from  them  by  law  they  want  us  to  barter  away  our 
rights  to  compensation  by  agreeing  to  a  much  less  compensation  than  we  are 
entitled  to,  they  agreeing  to  forego  the  use  of  the  so-called  defenses. 

At  the  public  meeting  of  the  Commission  held  in  this  city  August  24th 
and  25th  the  statement  was  made  on  the  part  of  the  employers  that  they, 
the  employers,  had  some  very  valuable  remedies  at  law,  the  so-called  defenses, 
and  they  would  not  let  go  of  them  unless  they  had  a  satisfactory  plan  of 
compensation.  Talk  about  the  big  noise  and  the  big  stick;  the  above  state- 
ment, coming  from  the  employers,  is  the  The  Big  Noise  and  The  Big  Stick 
combined. 

To  say,  as  has  been  said,  that  Labor  is  standing  in  its  own  light  by  oppos- 
ing compensation,  is  "bunk,"  unadulterated.  Those  who  use  that  statement 
know  better  than  anyone  else  that  Labor  does  not  oppose  a  compensation 
plan.  Labor  demands  an  adequate  automatic  compensation  plan,  which  will 
be  brought  about  in  a  logical  way  in  the  development  of  legislation  which 
must  come  as  the  result  of  the  horrible  maiming  and  slaughtering  of  our  fel- 
low workers  in  the  various  industries. 

It  has  been  said  that  an  Employers'  Liability  Law  and  a  compensation 
plan  are  two  progressive  steps  and  should  be  taken  together.  This  is  the 
most  dangerous  argument  we  have  had  to  contend  with,  because  there  is 
something  in  it  which  appeals  to  the  casual  observer  and  those  who  do  not 
look  behind  the  scenes.  But  no  greater  menace  to  the  interests  of  the  work- 
ers exists  than  to  link  these  two  questions  together  and  consider  them  at 
one  and  the  same  time.  A  closer  scrutiny  of  the  principles  involved  will 
readily  convince  any  open-minded,  honest  man  that  the  fundamental  principle 
of  each  proposition  is  absolutely  contrary  to  the  other. 

After  going  over  this  whole  matter  in  detail  we  can  come  to  no  other 
conclusion  than  that  Labor  has  almost  within  its  grasp  the  legislation  we 
have  sought  these  many  years.  All  these  other  propositions  injected  at  this 


EMPLOYERS'  LIABILITY  COMMISSION  35 

time  is  only  procrastination  and  to  becloud  the  issue,  and  to  get  the  workers 
wrangling  among  themselves  as  to  the  best  course  to  pursue.  Patience  will 
bring  results.  To  grasp  what  the  Commission  would  hand  us,  is  but  to  grasp 
at  a  straw.  Let  us  be  true  to  ourselves  and  the  employers  will  have  a  great 
awakening  in  the  near  future. 

For  the  Executive  Board :  For  the  Legislative  Committee  : 

JOHN  FITZPATRICK,  President,         JOHN  O'NEILL,  Chairman, 
ED.  N.  NOCKELS,  Secy.,  CHAS.  CURTIS,  Secy., 

MRS.  RAYMOND  ROBBINS,  JOHN  FLORA. 

M.  C.  BUCKLEY, 
F.  DONOGHUE, 
JERRY  KAIN, 
CHAS.  GRASSL. 

The  above  letter  was  submitted  to  the  Commission  by  Messrs.  Boyle  and 
Flora,  as  indicative  of  their  reasons  for  objecting  to  any  kind  of  a  Compen- 
sation Bill. 

The  employers  thereupon  submitted  the  following  statement,  expressing 
their  views  on  the  points  raised  by  the  Chicago  Federation  of  Labor. 

PRESENTED  BY   EMPLOYERS. 

September   14th,   1910. 
Hon.  Chas.  S.  Deneen, 
Governor  State  of  Illinois, 
Springfield,  111. 

Dear  Sir :  The  Commission,  of  which  the  undersigned  were  members,  or- 
ganized immediately  after  it  was  created  on  March  4,  1910,  and  devoted 
itself  diligently  to  a  careful  study  of  the  subject  of  Employers'  Liability,  in- 
volving the  collection  of  reliable  data  on  which  to  base  conclusions,  an  inves- 
tigation of  the  state  of  the  law  in  Illinois  in  regard  to  the  subject,  and  a 
study  of  what  has  been  done  by  the  leading  industrial  countries  in  Europe, 
and  what  was  under  consideration  by  similar  Commissions  appointed  in  the 
States  of  New  York,  Wisconsin  and  Minnesota.  On  or  about  August  1st  a 
tentative  plan  outlining  the  main  purposes  of  such  a  measure  as  the  Com- 
mission had  in  mind  was  formulated,  and  was  submitted  for  the  purpose  of 
provoking  discussion  and  criticism  in  public  meetings  held  in  East  St.  Louis, 
Springfield,  Rock  Island,  Peoria  and  Chicago.  The  plan  submitted  at  these 
meetings  comprised  in  its  essence  the  salient  features  of  a  Workmen's  Com- 
pensation Act.  Immediately  after  the  last  public  hearing  a  bill  was  prepared 
by  the  attorney  of  the  Commission,  incorporating  in  general  the  features  of 
the  plan,  with  such  modifications  as  were  suggested  by  the  public  discussions, 
and  after  numerous  changes  suggested  by  different  members  of  the  Commis- 
sion the  final  draft  of  a  bill,  as  follows,  was  submitted  to  vote. 

The  failure  to  recommend  a  bill  under  the  conditions  prescribed  by  the 
Act  creating  the  Commissions  was  due  in  large  measure,  in  the  opinion  of 
your  subscribers,  to  the  limited  time  at  the  disposal  of  the  Commission. 

The  necessity  for  submitting  a  final  report  on  September  15th  left  the 
Commission  no  time  for  the  publication  of  the  draft  of  the  completed  bill, 


36  EMPLOYERS'  LIABILITY  COMMISSION 

and  for  the  creation  of  public  sentiment  in  its  favor ;  neither  did  it  afford  to 
the  members  of  the  Commission  the  opportunity  of  finding  a  common  ground 
on  which  a  majority  of  each  side  could  meet. 

In  spite  of  the  fact  that  every  one  of  the  industrial  nations  of  Europe 
has  discarded  the  system  of  paying  damages  on  the  ground  of  the  liability 
of  the  employer,  and  has  adopted  in  its  stead  the  payment  of  compensation 
for  industrial  accidents;  in  spite  of  the  fact  that  New  York  has  adopted  a 
Workmen's  Compensation  Act,  and  that  both  Wisconsin  and  Minnesota  are 
considering  compensation  as  the  only  feasible  solution  of  this  problem,  the 
Chicago  Federation  of  Labor  and  its  representatives  on  the  Commission  have 
taken  a  decided  stand  that  the  abrogation  of  the  employers'  defenses  must 
precede  any  bill  providing  compensation. 

It  is  evident  from  the  letter  which  the  Federation  submits,  and  which 
is  reprinted  on  page  31,  that  its  officers  are  not  only  unfamiliar  or  unmind- 
ful of  the  economic  waste  involved  in  any  Employers'  Liability  system,  but 
that  they  have  no  knowledge  of  the  total  inadequacy  of  such  a  system,  even 
when  extended  by  such  serious  modification  of  the  employers'  defenses  as 
the  American  Federation  of  Labor  advocates. 

The  Bulletin  for  the  Bureau  of  Labor  for  January,  1908,  gives  on  page 
120  the  statistics  of  46,000  industrial  accidents  collected  by  the  German  Im- 
perial Insurance  Office. 

The  classification  of  the  causes  of  the  accidents  is  as  follows : 

1.  Due  to  negligence  or  fault  of  employer 16.81% 

2.  Due  to  joint  negligence  of  the  employer  and  injured  employe    4.66% 

3.  Due  to  negligence  of  co-employes  (fellow  servants) 5.28% 

4.  Due  to  acts  of  God 1.31% 

5.  Due  to  fault  or  negligence  of  employe 28.89% 

6.  Due  to  inevitable  accidents  connected  with  the  employment  42.05% 


100.00 

If  this  classification  is  correct,  and  the  statistics  of  German  Government 
Bureaus  are  not  often  open  to  suspicion,  then  if  under  existing  conditions  17 
out  of  every  100  injured  persons  are  entitled  to  recover,  the  abrogation  of 
the  fellow  servant  doctrine,  and  the  modification  of  the  defenses  of  assumed 
risk  and  contributory  negligence,  all  as  recommended  by  the  American  Fed- 
eration of  Labor,  will  increase  the  number  of  those  entitled  to  recover  to 
27  out  of  every  100  injured.  But  the  remaining  73  will  continue  to  add  their 
quota  to  the  long  list  of  unrewarded  sacrifices  to  modern  industry. 

Not  only  is  any  Employers'  Liability  Law,  no  matter  how  stringent, 
wholly  inadequate  to  cover  the  losses  resulting  from  industrial  accidents,  but 
the  administration  of  such  a  law  is  wasteful  and  unsatisfactory. 

The  cost  of  compensating  workmen  for  injuries  is  in  the  last  analysis 
borne  by  the  public,  and  the  interests  of  the  public  demand  that  no  system  of 
compensation  shall. carry  with  it  preventable  waste.  To  the  injured  work- 
man, or  to  his  family,  definite  compensation,  immediately  and  automatically 
paid,  is  of  vital  importance.  But  an  Employers'  Liability  Law  meets  none  of 
these  prime  necessities. 


EMPLOYERS'  LIABILITY  COMMISSION  37 

Under  it  every  case  is  a  gamble.  A  shrewd  attorney  and  a  sympathetic 
jury  mean  a  big  verdict,  and  an  equally  good  case,  poorly  handled,  often  results 
in  none.  But  the  employer  is  compelled  to  prepare  each  case  as  if  a  big 
verdict  were  imminent,  and  he  is  forced  to  put  up  a  hard  legal  fight  on  that 
account. 

During  1908  $22,000,000  was  contributed  by  the  employers  of  the  United 
States  to  Liability  Insurance  companies  to  carry  their  accident  risk,  and  of 
this  amount  not  more  than  $5,500,000  reached  the  injured  workmen,  or  his 
dependents — an  economic  waste  of  $16,500,000.  Double  the  chances  of  recov- 
ery by  an  abrogation  or  modification  of  the  employers'  defenses  and  you  but 
double  the  premium  and  increase  the  waste  to  $33,000,000. 

Surely  a  system  involving  such  a  waste  in  its  administration  cannot  be 
regarded  with  equanimity  by  the  public.  Nor  when  once  understood  would  it 
receive  sanction  by  any  body  of  workmen.  The  law's  delay,  at  present  so 
often  the  cause  of  bitter  complaint,  would  in  no  wise  be  improved  by  the 
enactment  of  a  stringent  liability  measure.  In  fact,  the  machinery  of  the 
courts  would  be  subjected  to  severer  strain  than  at  present. 

And  beyond  that,  the  very  ground  on  which  damages  are  assessed  under 
a  Liability  Act,  viz.,  the  fault  or  negligence  of  the  employer,  is  often  irrational 
and  unjust.  When  an  employer  has  surrounded  his  workmen  with  every 
proper  safeguard,  and  when  he  has  exercised  proper  care  in  the  selection  of 
his  workmen  and  his  agents,  he  resents  a  demand  for  damages  because  he 
has  been  at  fault  or  has  been  guilty  of  negligence. 

In  the  opinion  of  the  undersigned,  the  problem  of  industrial  accidents 
cannot  be  solved  satisfactorily  to  all  concerned  until  the  question  is  taken 
out  of  the  realm  of  tort  and  placed  on  the  basis  of  definite  compensation  auto- 
matically paid.  But  this  opinion  is,  unfortunately,  not  shared  at  this  time 
by  some  of  our  labor  colleagues.  They  state  that  for  the  past  generation  the 
workers  have  discussed  the  question  of  Employers'  Liability,  that  they  are 
familiar  with  it  in  all  its  bearings,  and  that  they  can  measure  the  advantage 
to  themselves  of  any  modification  of  existing  Employers'  Liability  Laws. 

Such,  however,  is  not  true  concerning  a  Workmen's  Compensation  Act. 
The  subject  is  still  new  to  them.  It  has  not  been  generally  discussed  among 
them,  and  they  find  it  diflicult  on  that  account  to  predict  or  foresee  the  result. 
We  believe  that  all  of  our  labor  colleagues  on  the  Commission  agree  that  the 
scale  of  compensation  submitted  in  the  plan  is  at  least  from  four  to  five 
times  that  received  under  present  conditions.  But  in  spite  of  that,  some  of 
them  are  unwilling  to  subscribe  to  a  measure  which  has  not  the  full  approval 
of  the  organizations  which  they  represent,  and  insist  that  the  Commission 
draft  and  submit  an  Employers'  Liability  Bill  along  the  lines  recommended 
by  the  American  Federation  of  Labor.  This  demand  was  opposed  by  all  of 
the  employers,  for  the  reasons  hereinbefore  stated,  and  the  division  of  the 
Commission  on  this  question  was  so  marked  as  to  preclude  any  opportunity 
of  agreement  on  the  details. 

In  spite  of  the  sHort  time  allowed  the  Commission,  the  draft  of  the  bill 
submitted  in  this  letter  represents  a  very  positive  step  in  advance,  and  had 
further  time  been  allowed  for  both  employers  and  employes  to  familiarize 
themselves  with  its  terms  and  its  scope,  we  are  certain  that  a  definite  bill  could 
have  been  agreed  upon. 


38  EMPLOYERS'  LIABILITY  COMMISSION 

The  scale  of  compensation  outlined  in  the  plan  meant  for  the  hazard- 
ous employments  a  very  considerable  increase  in  expense ;  and  in  the  opinion 
of  the  employers  on  the  Commission  this  scale  is  all  that  can  be  allowed  until 
the  industries  which  compete  with  those  of  other  States  have  been  able  to 
adjust  themselves  to  so  radical  a  change  from  existing  conditions.  Our  labor 
colleagues  have  been  too  apt  to  base  their  conception  of  compensation  on  the 
amount  which  in  their  opinion  the  very  large  corporations  like  the  TJ.  S.  Steel 
Co.,  the  Harvester  Co.,  and  the  packing  companies  were  able  to  pay,  and  have 
at  times  been  forgetful  of  the  many  thousand  small  employers  in  the  State 
upon  whom  the  bill,  of  necessity,  must  impose  similar  burdens.  The  condi- 
tions in  certain  industries  in  Chicago  cannot,  and  should  not,  be  made  the 
sole  basis  for  legislation  for  the  rest  of  the  State. 

The  method  of  providing  for  arbitration  in  the  draft  submitted  is,  in  the 
opinion  of  your  subscribers,  inferior  to  one  in  which  all  questions  pertaining 
to  the  Compensation  Act  would  be  submitted  to  a  regular  and  permanent  Board 
of  Arbitration  and  Award;  but  the  attorney  for  the  Commission  hesitated 
about  incorporating  the  authorization  of  such  a  body  in  the  provisions  of  the 
bill. 

The  undersigned  have  been  prompted  to  submit  to  you  this  letter,  in 
order  to  call  to  your  attention,  and  to  that  of  the  Legislature,   the  chief 
difficulties  that  have  stood  in  the  way  of  an  agreement,  and  in  order  to  assist, 
if  possible,  the  crystallization  of  public  opinion  on  this  important  question. 
Yours  very  truly, 

CHARLES  PIEZ, 
W.  J.  JACKSON, 
P.  H.  PETERSON, 
M.  B.  STARRING, 
E.  T.  BENT, 
R.  E.  CONWAY. 


This  concluded  the  active  work  of  the  Commission,  the  final  day  being  devoted 
to  the  closing  up  of  details. 

Respectfully  submitted, 

CHARLES  PIEZ,  Chairman. 
EDWIN  R.  WRIGHT,  Secretary. 


ATTORNEY'S  PRELIMINARY 
REPORT 


nnna 


The  attorney  for  the  Commission,  soon  after  its  organization,  was  re- 
quested to  make  a  report  on  the  present  state  of  the  law  in  Illinois  with  ref- 
erence to  the  general  subject  of  employers'  liability,  so  that  the  Commission 
might  better  judge  what  changes,  if  any,  seemed  to  be  necessary  or  desirable. 
The  law  of  employers'  liability  for  industrial  accidents,  and  the  legal  rights 
of  employes  for  the  recovery  of  damages  for  personal  injury  not  being  defined 
by  statute,  except  in  a  few  exceptional  cases,  the  Commission  desired  to  have 
stated,  in  concrete  form,  the  general  rules  on  these  questions,  as  settled  by 
the  decisions  of  the  courts.  The  attorney  therefore  submitted  the  following 
brief  on : 


THE  STATE  OF  THE  LAW  IN  ILLINOIS  IN  REGARD  TO  EMPLOYERS' 

LIABILITY. 
By  Samuel  A.  Harper. 

1.    COMMON  LAW. 

There  is  in  Illinois,  at  the  present  time,  no  Labor  Code  such  as  may  be 
found  in  the  laws  of  New  York  and  other  states  of  the  Union,  neither  is  there 
in  this  state  any  statutory  employers'  liability  law.  The  common  law  of  Eng- 
land is  in  force  in  Illinois,  as  to  both  the  branches  of  substantive  and  adjec- 
tive law,  except  so  far  as  the  former  has  been  modified  by  some  recent  legisla- 
tion directed  especially  to  the  safeguarding  of  employes  in  certain  industries, 
and  the  latter  by  certain  rules  of  practice  which  have  been  provided  for  by 
statute. 

In  other  words,  any  employe  who  is  injured  in  the  course  of  his  employ- 
ment, has  no  other  remedy  against  his  employer  because  of  such  injury 
than  that  afforded  him  by  the  rules  of  the  Common  Law,  there  being  no 
statute  giving  him  any  such  right  of  action  for  injury,  with  the  exception 
found  in  the  act  relating  to  mines  and  mining  and  the  act  creating  a  liability 
for  injury  resulting  in  death. 

Indeed,  our  legislature  provided  by  a  statute  enacted  in  1874  that  "the 
common  law  of  England,  so  far  as  the  same  is  applicable  and  of  a  general 
nature,  and  all  statutes  or  Acts  of  the  British  parliament  made  in  aid  thereof, 
and  to  supply  the  defects  of  the  common  law,  *  *  *  and  which  are  of  a 
general  nature  and  not  local  to  that  kingdom,  shall  be  the  rule  of  decision, 
and  shall  be  considered  of  full  force  until  repealed  by  legislative  authority." 

Hnrd's  Rev.  Stat,  Chap.  28,  p.  485. 


40  EMPLOYERS'  LIABILITY  COMMISSION 

It  therefore  becomes  important  at  the  outset  to  ascertain  the  exact 
limitations  to  be  found  in  the  common  law,  as  expressed  in  the  decisions  of 
the  courts,  (where,  only,  is  such  common  law  to  be  found)  upon,  first,  the 
employes'  right  to  compensation  for  injuries  received,  and,  second,  the 
liability  of  the  employer  arising  from  such  injuries. 

At  the  Common  Law,  both  in  England  and  this  country,  since  1837,  the 
legal  relation  of  employer  and  employe,  with  regard  to  the  former's  liability 
for  injuries  suffered  by  the  latter,  has  been  governed  by  certain  principles 
which  may  be  briefly  summarized  as  follows: 

That  the  employe  or  servant,  on  the  one  hand,  upon  entering  into  an 
employment,  by  implication  agrees  that  he  will  assume  the  ordinary  risks 
incident  to  the  service  in  which  he  is  to  be  engaged,  among  which  is  the 
negligence  of  other  servants  directly  co-operating  in  the  same  service  for  the 
same  master,  and  that  for  injuries  arising  out  of  risks  not  so  impliedly 
assumed,  such  employe  being  without  negligence  on  his  part  shall  be  en- 
titled to  compensation  from  the  employer  or  master;  and, 

That  the  employer,  or  master,  impliedly  contracts  that  he  will  use  due  care 
in  engaging  the  services  of  those  who  are  reasonably  fit  and  competent  for 
the  performance  of  their  respective  duties  in  the  common  service,  and  will 
also  take  due  precaution  to  adopt,  use  and  provide  such  machinery,  apparatus, 
tools,  appliances,  means  and  places  to  work  as  are  suitable  and  proper  for  the 
prosecution  of  the  business  in  which  his  servants  are  engaged,  with  a  reason- 
able degree  of  safety  to  life  and  security  against  injury,  and  fc .-  any  default 
on  the  part  of  the  master  in  the  performance  of  any  of  these  duties,  injury 
resulting  therefrom,  he  shall  be  liable  to  the  employe  for  compensation. 

Under  the  present  system,  therefore,  compensation  for  injury  or  death 
can  be  had  only  in  case  of  fault  or  negligence  on  the  part  of  the  employer. 

The  general  principles  of  the  common  law  above  referred  to,  as  developed 
by  the  courts,  have  given  rise  to  three  more  or  less  distinct  defenses  usually 
urged  on  the  part  of.  the  employer  to  the  employe's  claims  for  compensation 
for  injury.  These  common  law  defenses  are: 

(a)     The  Fellow  Servant  doctrine. 

(&)     Assumption  of  RisTc. 

(c)     Contributory  Negligence. 
i 

(a)     THE  FELLOW  SERVANT  DOCTRINE. 

The  Fellow  Servant  rule,  as  announced  in  the  earlier  decisions  of  our 
Supreme  Court,  precluded  the  recovery  by  one  servant  for  any  injury  occa- 
sioned by  the  negligence  of  another  engaged  in  the  same  general  business,  if 
there  had  been  ordinary  care  and  diligence  observed  by  the  master  in  the 
selection  of  servants. 

C.  C.  &  I.  C.  R.  Co.  vs.  Troesch,  68  111.  545. 

Some  of  these  earlier  opinions  of  the  courts  employ  the  phrase  "same 
line  of  employment"  and  like  expressions  instead  of  "same  general  business," 
but  the  expressions  are  usually  of  a  very  comprehensive  and  general  char- 
acter, without  limitation  with  reference  to  the  different  departments  of 
work,  etc. 

The  precise  origin  of  the  Fellow  Servant  Doctrine  in  the  history  of  the 
law  is  in  some  doubt  The  general  liability  of  the  master  for  injuries  arising 
out  of  the  conduct  of  his  business,  including  the  acts  of  his  servant,  has  been 


EMPLOYERS'  LIABILITY  COMMISSION  41 

traced  partly  to  the  liability  of  the  Roman  paterfamilias,  especially  with 
regard  to  the  acts  of  those  within  his  power,  and  partly  to  that  of  innkeepers, 
mariners,  and  persons  in  a  few  other  situations  under  the  Roman  law  for  in- 
juries caused  by  their  servants.  As  was  said  by  one  Roman  jurist,  Ulpian, 
"it  is  politic  that  the  master  should  have  the  selection  of  servants  at  his 
peril." 

Dig.  4,  7,  9. 

From  this  early  principle  of  the  Roman  law  has  probably  arisen  the 
modern  doctrine  of  respondeat  superior,  or  the  liability  of  the  master  for  the 
negligent  acts  of  his  servant,  to  which  the  fellow  servant  rule  is  in  a  measure 
an  exception. 

The  first  decision  in  common  law  countries,  announcing  the  Fellow  Ser- 
vant rule,  as  it  is  now  called,  was  made  in  1837  by  the  English  Court  of  Excheq- 
uer, in  the  case  of  Priestly  vs.  Fowler,  3  M.  &  W.  1,  and  the  doctrine  as  there 
announced  was  finally  settled  in  England  by  the  House  of  Lords  in  1858  in 
Barstonhill  Coal  Co.  vs.  Reid,  3  Macq.  House  of  Lords  Cases,  266. 

The  Priestly  case,  decided  by  Lord  Abinger,  was  not  a  case  of  injury  in  a 
factory  or  on  a  railroad,  but  a  simple  case  where  a  butcher's  helper  was 
injured  by  a  wagon  driver  hired  by  the  same  employer.  It  apparently 
seemed  a  hardship  to  hold  the  butcher  liable  for  the  injury  which  had  no 
real  relation  to  any  fault  of  his,  which  injury  the  helper  could  have  guarded 
against  as  well  as  the  butcher.  This  hardship  seems  to  have  appealed  to 
Lord  Abinger  and  he  decided  in  favor  of  the  butcher.  Lord  Abinger's 
opinion  reads  as  follows : 

"It  is  admitted  that  there  is  no  precedent  for  the  present  action  by  a 
servant  against  a  master.  We  are,  therefore,  to  decide  the  question  upon 
general  principles,  and  in  doing  so  we  are  at  liberty  to  look  at  the  conse- 
quences of  a  decision  the  one  way  or  the  other. 

"If  the  master  be  liable  to  the  servant  in  this  action  the  principle  of  that 
liability  will  be  found  to  carry  us  to  an  alarming  extent.  He  who  is  respon- 
sible by  his  general  duty,  or  by  the  terms  of  his  contract  for  all  the  conse- 
quences of  negligence  in  a  matter  in  which  he  is  the  principal,  is  responsible 
for  the  negligence  of  all  his  inferior  agents.  If  the  owner  of  the  carriage  is 
therefore  responsible  for  the  sufficiency  of  his  carriage  to  his  servant,  he  is 
responsible  for  the  negligence  of  his  coachmaker,  or  his  harnessmaker  or  his 
coachman.  The  footman,  therefore,  who  rides  behind  the  carriage,  may  have 
an  action  against  his  master  for  a  defect  in  the  carriage,  owing  to  the  negli- 
gence of  the  coachmaker,  or  for  a  defect  in  the  harness,  arising  from  negli- 
gence of  the  harnessmaker,  or  for  drunkenness,  negligence  or  want  of  skill 
in  the  coachman;  nor,  is  there  any  reason  why  that  principle  should  not,  if 
applicable  in  this  class  of  events,  extend  to  many  others.  The  master,  for 
example,  would  be  liable  to  the  servant  for  the  negligence  of  the  chambermaid, 
for  putting  him  into  a  damp  bed ;  for  that  of  the  upholsterer  for  sending  him 
a  crazy  bedstead,  whereby  he  was  made  to  fall  down  while  asleep  and  injure 
himself;  for  the  negligence  of  the  cook  in  not  properly  cleaning  the  copper 
vessels  used  in  the  kitchen ;  of  the  butcher,  in  supplying  the  family  with  meat 
of  a  quality  injurious  to  the  health;  of  a  builder  for  a  defect  in  the  foun- 
dation of  the  house,  whereby  it  fell  and  injured  both  the  master  and  the 
servant  by  the  ruins. 


42  EMPLOYERS'  LIABILITY  COMMISSION 

"The  inconvenience,  not  to  say  the  absurdity,  of  these  consequences  afford 
a  sufficient  argument  against  the  application  of  this  principle  to  the  present 
case.  But,  in  truth,  the  mere  relation  of  the  master  and  .the  servant  never 
can  imply  an  obligation  on  the  part  of  the  master  to  take  more  care  of  the 
servant  than  he  may  reasonably  be  expected  to  do  of  himself.  He  is  no  doubt 
bound  to  provide  for  the  safety  of  his  servant,  in  the  course  of  his  employment, 
to  the  best  of  his  judgment,  information  and  belief.  The  servant  is  not  bound 
to  risk  his  safety  in  the  service  of  his  master,  and  may,  if  he  thinks  fit, 
decline  any  service  in  which  he  reasonably  apprehends  injury  to  himself; 
and  in  most  of  the  cases  in  which  danger  may  be  incurred,  if  not  all,  he  is  just 
as  likely  to  be  acquainted  with  the  probability  and  extent  of  it  as  the  master." 

The  first  case  in  this  country  recognizing  this  doctrine  was  decided  in  1841, 
being  Murray  vs.  So.  Carolina  Ry.  Co.,  McMullen's  Law,  385,  decided  by  the 
Supreme  Court  of  South  Carolina.  It  was  adopted  in  Massachusetts  in  1842, 
in  the  case  of  Farwell  vs.  Boston,  etc.  R.  R.  Co.,  4  Metcalfe,  49,  the  opinion 
being  written  by  Chief  Justice  Shaw,  one  of  the  ablest  judges  of  his  time. 
This  opinion  by  Chief  Justice  Shaw  has  been  very  extensively  cited  since 
that  time,  and  largely  upon  the  authority  of  this  decision  the  fellow  servant 
doctrine  has  now  been  generally  adopted  in  every  state  in  the  Union. 

The  first  case  in  Illinois  which  recognizes  the  fellow  servant  rule  is 
Honner  vs.  111.  Central  Railroad,  15  111.  550,  decided  in  1854.  Mr.  Justice 
Caton,  speaking  for  the  Court  in  the  decision  of  this  case,  said: 

"Until  very  recently  actions  of  this  character  have  never  been  brought, 
or  at  least  are  not  to  be  met  with  in  the  books.  Since  the  introduction  of 
railroads,  however,  several  are  to  be  met  with,  both  in  the  reports  of  this 
country  and  of  England,  and  with  one  exception,  if,  indeed',  that  be  an  excep- 
tion, they  have  been  uniformly  decided  against  the  right  to  maintain  the 
action.  The  question  simply  is,  whether  the  principal  is  liable  to  one  servant 
for  the  carelessness  of  another  servant,  when  both  are  engaged  in  the  business 
of  the  principal.  *  *  *  Taking  it  for  granted  that  the  injury  arose  solely 
from  the  carelessness  of  his  fellow  servants,  we  think  the  action  cannot  be 
maintained.  After  carefully  examining  all  the  reported  cases  on  this  ques- 
tion, I  only  think  it  necessary  to  refer  to  Farwell  vs.  Boston  and  Worcester 
Railroad  Corporation,  4  Met.  49,  where  the  whole  argument  upon  the  ques- 
tion is  embodied  in  the  opinion  of  Chief  Justice  Shaw.  It  is  there  clearly 
shown  that  the  doctrine  of  respondeat  superior  does  not  extend  to  the  case  of 
an  injury  received  by  one  servant  through  the  carelessness  of  another  servant, 
but  that  if  he  has  any  such  claim  it  must  rest  upon  contract,  express  or 
implied.  There  are  certain  perils  incident  to  all  employments,  and  which 
both  parties  have  in  view  when  the  engagement  for  service  is  made,  and  in 
view  of  which  the  compensation  is  fixed ;  and  especially  in  a  railroad  service, 
the  amount  of  hazard  must  depend  very  much  upon  the  skill  and  care  of  the 
servants  of  the  company,  and  injuries  to  other  servants  arising  from  the 
want  of  proper  care  and  skill  are  deemed  casualties  which  the  employer  does 
not  undertake  to  insure  against,  but  for  which  he  pays  a  premium  in 
enhanced  wages  to  the  servants  in  view  of  those  very  risks,  which  both  know 
the  servant  must  run  *  *  *." 

It  is  interesting  to  note  that  this  Honner  case,  in  the  15th  111.,  decided  in 
1854,  is  the  only  case  reported  from  1818,  (the  date  of  the  creation  of  our 


EMPLOYERS'  LIABILITY  COMMISSION  43 

Supreme  Court)  to  1854,  in  which  the  relation  of  master  and  servant  was 
in  any  way  involved.  It  is  also  significant  that  in  the  first  55  years  of  the  his- 
tory of  our  Supreme  Court  only  25  tort  cases  involving  the  relation  of  master 
and  servant  were  decided  in  that  court,  whereas  the  last  bound  volume  of  our 
Supreme  Court  reports,  being  No.  243,  contains  13  such  cases. 

The  attitude  of  the  courts  in  the  early  days  with  reference  to  new  and 
extreme  hazards  of  industry  is  well  illustrated  by  the  opinion  of  Mr.  Justice 
Breese  in  I.  C.  R.  Co.  vs.  Mills,  42  111.  408,  where,  among  other  things,  he 
says  :  ''The  care  and  diligence  required  in  each  case  should  have  some  relation 
or  affinity  to  the  nature  of  the  business  and  of  the  instrumentalities  by  which 
it  is  conducted.  So  a  much  higher  degree  of  care  should  be  required  of  an 
association  owning  and  controlling  such  dangerous  machines  as  railroad 
locomotives  than  is  usually  exercised  by  a  prudent  man  about  his  own 
property." 

THE  MODERN  DOCTRINE. 

While  the  first  twenty-five  years  of  the  application  of  the  doctrine  of 
Priestly  vs.  Fowler  very  largely  extended  the  real  scope  of  the  rule  as  an- 
nounced by  Lord  Abinger,  the  last  twenty-five  years  have  established  a  great 
many  limitations  upon  the  rigid  application  of  the  rule  to  rapidly  changing 
industrial  conditions,  which  rule,  under  the  circumstances,  courts  and  juries 
have  seemed  loath  to  enforce.  Our  Supreme  Court  has  kept  pace  with  the 
other  courts  in  limiting  the  application  of  the  rule  as  declared  in  the  Troesch 
case,  supra,  and  the  modern  rule  which  it  announces  may  be  briefly  stated 
as  follows : 

If  one  servant  has  been  injured  by  the  negligence  of  another,  while  they 
are  directly  co-operating  with  each  other  in  the  same  line  of  employment, 
and  their  duties  are  such  as  to  bring  them  into  habitual  association,  so  that 
they  may  exercise  a  mutual  influence  upon  each  other  promotive  of  proper  cau- 
tion, and  the  master  is  guilty  of  no  negligence  in  employing  the  servant, 
whose  negligence  caused  the  injury,  the  master  is  not  liable. 

t         Bennett  vs.  Chicago  City  Ry.  Co.,  243  111.  420. 
It  will  be  noted  that  in  the  Troesch  case  and  cases  of  that  period,  it 
was  only  necessary  that  the  servants  be  engaged  in  the  same  general  business 
or  the  same  line  of  employment,  but  in  the  later  doctrine,  as  above  stated, 
such  servants  must  be: 

1.  Directly  co-operating  with  each  other. 

2.  They  must  be  in  such  habitual  association  as  to  exercise  a  mutual 
influence  upon  each  other  promotive  of  proper  caution. 

EXAMPLES. 

(1)  For  instance,  under  this  modern  rule,  the  Court  generally  holds 
that  servants  employed  in  different  rooms  are  not  fellow  servants  because 
they  are  not  so  associated  as  to  exercise  over  each  other  an  influence  pro- 
motive  of  common  caution. 

Wells  vs.  O'Hare,  209  111.  627. 
Schneider  vs.  Carlin,  120  111.  App.  538. 

(2)  A  foreman  of  a  gang  of  common  laborers  is  generally  held  not 
to  be  a  fellow  servant  with  such  laborers. 

111.  Steel  Co.  vs.  Olste,  214  111.  181. 


44  EMPLOYERS'  LIABILITY  COMMISSION 

(3)  One  who  is  ordered  to  do  work  outside  of  his  usual  employment  and 
thereby  brought  into  contact  with  different  employes,  is  not  the  fellow  servant 
of  such  employes,  though  temporarily  engaged  with  them. 

Cleveland,  etc.,  Ry.  Co.  vs.  Surrelle,  115  111.  App.  615. 

American  Car  and  Foundry  Co.  vs.  Hill,  226  111.  227. 

The  courts  endeavor  to  make  it  clear  that  the  determining  consideration 
always  is  whether  the  two  servants  were  so  associated  in  the  performance 
of  their  duty  as  to  exercise  an  influence  over  each  other  promotive  of  proper 
or  common  caution,  and  if  this  is  true,  they  are  quite  generally  held  to  be 
fellow  servants,  unless  the  servant  whose  negligence  caused  the  injury  should 
happen  to  be  a  foreman  or  vice-principal. 

A  vice-principal  has  been  recently  defined  by  our  Supreme  Court  to  be 
a  servant  who  represents  the  master  in  the  discharge  of  those  primary 
and  personal  duties  which  the  master  owes  to  the  servants,  and  which  he 
cannot  so  delegate  to  others  as  to  relieve  himself  from  liability  for  their 
proper  performance — and  hence  the  relation  of  vice-principal  does  not  depend 
upon  the  question  of  a  servant's  rank  or  authority.  A  common  laborer 
engaged  in  preparing  a  place  for  other  servants  to  work  or  appliances  for 
other  servants  to  use,  is,  as  to  such  work,  a  vice-principal,  irrespective  of 
whether  or  not  he  has  any  authority  over  the  other  servants. 

Schillinger  vs.  Smith,  225  111.  74. 

In  other  words,  any  person  charged  with  or  actually  engaged  in  the  per- 
formance of  any  part  of  the  master's  non-delegable  duties  is  a  vice-principal, 
for  whose  negligence  in  the  performance  of  such  duties,  the  master  is  liable. 

Baeir  vs.  Selke,  211  111.  512. 

The  rule  simply  means  that  the  master  may  delegate  the  performance 
of  the  act  in  question,  but  that  he  cannot  delegate  the  duty  so  as  to  shift 
the  responsibility  for  it  upon  the  shoulders  of  one  of  his  servants.  If  he 
sees  fit  to  delegate  the  performance  of  such  an  act,  he  is  held  accountable  for 
the  manner  in  which  his  subordinate,  whom  the  law  calls  a  vice-principal, 
shall  discharge  that  duty  for  him. 

QUESTION  OF  LAW  OB  FACT. 

Our  Supreme  Court  holds,  where  the  facts  with  reference  to  the  ques- 
tion of  whether  the  two  servants  were  fellow  servants  or  not,  are  in  dispute, 
or  the  relation  proved  is  such  that  reasonable  minds  will  differ  on  the  ques- 
tion as  to  whether  the  relation  of  fellow  servant  exists,  it  is  a  question  of 
fact  and  should  be  submitted  to  the  jury  with  proper  instructions  from  the 
court. 

111.  Steel  Co.  vs.  Zienkowski,  220  111.  324. 

Where  all  the  facts  regarding  the  relations  of  servants  are  made  known 
without  dispute  or  controversy,  and  are  so  conclusive  that  only  one  reason- 
able conclusion  can  be  drawn  therefrom,  the  question  is  held  to  be  one 
of  law  for  the  court  to  pass  upon  without  the  intervention  of  a  jury. 

111.  Central  Ry.  Co.  vs.  Ring,  119  111.  App.  294. 

While,  therefore,  in  a  majority  of  cases,  perhaps,  the  judges  permit 
the  case  to  go  to  the  jury  on  the  question  of  fellow  servants,  it  very  often 
happens  in  actual  practice  that  doubtful  cases  are  taken  from  the  jury  in 
order  to  save  the  time  of  the  courts  who  are  laboring  in  an  effort  to  clean 
up  a  congested  docket. 


EMPLOYERS'  LIABILITYJCOMMISSION  45 

The  English  doctrine  of  fellow  servants  does  not  appear  to  have  ever 
existed  in  the  law  of  any  other  country  in  Europe,  and  has  now  been  sup- 
planted in  England  by  Automatic  Compensation.  Pollock  on  Torts,  8th  Ed., 
p.  100. 

b.    ASSUMPTION  OP  EISK. 

The  so-called  Assumption  of  Risk  rule  is  closely  related  to  the  Feiiow 
Servant  rule,  the  former  rule  really  embracing  the  latter.  This  principle, 
which  is  now  established  in  the  law  beyond  the  reach  of  controversy,  is 
that  every  risk  which  an  employment  still  involves  after  a  master  has  done 
everything  that  he  is  bound  to  do  for  the  purpose  of  securing  the  safety 
of  his  servants  (including  the  employment  of  other  servants)  is  assumed, 
as  a  matter  of  law,  by  each  of  those  servants.  The  risks  which  are  thus 
considered  to  have  been  assumed,  are  those  which  are  commonly  described 
as  "ordinary."  It  is  the  settled  doctrine  of  the  law  that  the  servant  may 
reasonably  be  presumed  to  foresee  that  he  will  be  exposed  to  the  ordinary 
risks  of  the  business  in  which  he  engages,  but  that  he  ought  not  to  be  charged 
with  anticipating  the  consequences  of  risks  of  an  extraordinary  character. 

OEDINAEY  RISK  DEFINED. 

The  ordinary  risks  and  hazards  of  the  employment,  are  such  risks  as 
are  usual  and  ordinary  therein  after  the  employer  has  taken  reasonable  care 
to  discover  and  prevent  such  risks. 

Wells  vs.  O'Hare,  209  111.  627. 

As  illustrating  the  scope  of  this  rule  and  its  relation  to  the  Fellow  Serv- 
ant doctrine,  we  quote  the  following  from  our  Supreme  Court: 

"When  the  ordinary  duties  and  occupations  of  the  servants  of  a  common 
master  are  such  that  one  is  necessarily  exposed  to  hazard  by  the  carelessness 
of  another,  they  must  be  supposed  to  have  voluntarily  taken  the  risks  of 
such  possible  carelessness  when  they  entered  the  service  and  must  be  regarded 
as  fellow  servants  within  the  meaning  of  this  rule." 

C.  &  A.  R.  R.  Co.  vs.  Murphy,  53  111.  336,  339. 

The  Assumption  of  Risk  rule  presupposes  a  contractual  equality  between 
the  master  and  his  servant,  it  being  assumed  by  the  court  that  the  servant 
can  accept  the  employment  and  assume  the  hazard  or  refuse  to  do  so  at 
his  pleasure. 

THE  EFFECT  OF  SAFETY  REGULATIONS  UPON  THE  QUESTIONS  OF  FELLOW 
SERVANT  AND  ASSUMPTION  OF  RISK. 

The  courts  promptly  seize  upon  statutory  provisions  requiring  safety 
devices  for  railroads  and  machinery,  etc.,  for  further  relief  against  the  hard 
application  of  these  defenses  in  the  particular  case,  and  it  has  many  times 
been  held  by  our  Supreme  Court  that  if  the  master  neglects  to  comply  with 
a  statutory  or  safety  regulation,  he  cannot  avail  himself  of  the  defense  of 
Fellow  Servant  or  Assumption  of  Risk,  if  the  accident  resulted  from  such 
neglect  on  his  part. 

For  instance,  it  is  held  that  the  Assumption  of  Risk  rule  does  not  relieve 
the  master,  a  railroad  company  from  the  performance  of  the  duty  imposed 


46  EMPLOYERS'  LIABILITY  COMMISSION 

by  statute  as  to  the  sounding  of  the  engine  bell  and  whistle  at  highway 
crossings. 

B.  &  O.  Co.  vs.  Alsop,  176  111.  471. 

Again,  in  suits  involving  the  failure  of  the  master  to  comply  with  the 
statute  relating  to  mines  and  mining,  the  Court  holds  that  these  defenses 
shall  not  be  available,  and  because  of  the  express  right  given  the  injured 
servant  or  his  dependents  to  sue  for  an  injury  or  death  caused  by  such 
violation,  the  courts  go  further  and  hold  that  contributory  negligence  shall 
not  be  a  defense.  In  Carterville  Coal  Co.  vs.  Abbot,  181  111.  503,  the  Court 
said: 

"If  one  is  injured  as  a  result  of  some  act  of  negligence  on  the  part  of 
the  mine  owner  other  than  failure  to  comply  with  specific  duties  required 
by  the  statute,  then  the  person  injured  must  have  been  in  the  exercise  of 
ordinary  care  before  he  can  maintain  an  action,  and  must  allege  and  prove 
that  he  was  in  the  exercise  of  such  care.  The  rule  is  different,  however, 
under  this  legislation,  where  there  is  a  willful  failure  to  comply  with  the 
provisions  of  the  statute,  and  the  right  of  recovery  cannot  depend  in  such 
case  on  the  exercise  of  ordinary  care,  by  the  person  injured,  nor  can  he  be 
precluded  by  mere  contributory  negligence." 

Neither  is  this  defense  available  where  the  servant  is  under  the  age  of 
16  and  employed  contrary  to  the  Child  Labor  Law. 

Helmbacker  vs.  Garrett,  119  111.  App.  166. 

KNOWLEDGE. 

A  servant  is  not  presumed  to  understand  and  assume  every  character 
of  peril  or  danger  that  may  possibly  arise  in  the  performance  of  his  duty ; 
he  assumes  only  known  or  obvious  dangers,  knowledge  of  which  is  to  be  fairly 
presumed. 

Cobb  Chocolate  Co.  vs.  Knudson,  207  111.  452. 

If  the  employe  knows  or  by  the  exercise  of  ordinary  prudence  might 
know  the  danger,  he  will  be  held,  as  a  matter  of  law,  to  know  it  and  to  have 
.  assumed  the  risk. 

C.  &  A.  R.  Co.  vs.  Howell,  208  111.  155. 

QUESTION  OF  LAW  OB  FACT. 

Whether  a  particular  risk  is  usual  or  ordinary  is  generally  a  question  of 
fact,  left  for  the  jury  to  determine. 

Wabash  vs.  Thomas,  117  111.  App.  110. 

Whether  a  particular  risk  was  known  or  ought  to  have  been  known  to 
the  servant  is  ordinarily  a  question  of  fact  to  be  determined  by  the  jury 
with  due  regard  to  the  age,  capacity,  experience  and  intelligence  of  the 
employe,  and  the  facts  and  circumstances  of  the  particular  case. 

Schillinger  vs.  Smith,  225  111.  74. 

ORDERS. 

The  effect  of  the  express  orders  of  the  master  to  the  servant  upon  the 
question  of  the  assumption  of  the  risk  ofttimes  becomes  important,  and  the 
rule  adopted  by  the  courts  on  this  subject  may  be  briefly  stated  as  follows : 
In  order  to  recover  for  alleged  negligence  in  ordering  the  employe  into  a 
place  of  danger,  he  must  prove  by  a  preponderance  of  the  evidence,  first, 


EMPLOYERS'  LIABILITY  COMMISSION  47 

it  he  was  acting  under  orders  which  he  was  bound  to  obey;  second,  that 
his  superior  knew  of  the  danger,  and,  third,  the  employe  was  exercising  due 
care. 

Wiggins  Ferry  Co.  vs.  Hill,  112  111.  App.  475. 

The  general  principle,  therefore,  which  appears  to  be  firmly  established 
in  Illinois  is  that  "if  a  person  knowing  the  hazards  of  his  employment  as 
the  business  is  conducted,  voluntarily  continues  therein  without  any  promise 
of  the  master  to  do  any  act  to  render  the  same  less  hazardous,  the  master 
will  not  be  liable  for  any  injury  he  may  sustain  therein,  unless,  indeed,  it 
may  be  caused  by  the  willful  act  of  the  master." 

Stafford  vs.  C.  B.  &  Q.  Ry.  Co.,  114  111.  244. 


C.      CONTBIBUTOBY   NEGLIGENCE. 

It  will  be  observed  from  the  quotation  last  above  made  that  the  doctrine 
of  contributory  negligence  is  also  closely  related  to  the  rule  regarding  Assump- 
tion of  Risk.  It  will  be  easily  seen  that  if  the  servant  is  shown  to  have 
begun  or  to  have  continued  his  work  with  a  knowledge  of  the  danger  aris- 
ing from  the  master's  breach  of  duty,  he  might  be  charged  with  having 
assumed  the  risk  and  also  with  contributory  negligence,  and  if  for  any 
reason  it  appears  that  the  master  is  precluded  from  availing  himself  of 
one  of  these  defenses,  the  servant's  action  may  still  be  resisted  on  the  ground 
that  the  other  defense  is  applicable. 

Generally  speaking,  contributory  negligence  is  the  negligence  of  a  servant 
which  is  a  contributing  and  proximate  cause  of  his  injury,  and  the  burden 
is  upon  the  employe  in  any  action  for  compensation  for  injuries  received  to 
prove  not  only  the  negligence  of  the  employer,  but  that  he  himself  was 
exercising  ordinary  care  and  was  free  from  negligence,  directly  contributing 
to  the  injury. 

COMPARATIVE  NEGLIGENCE. 

The  courts  of  our  state  formerly  followed  the  so-called  comparative 
negligence  doctrine,  beginning  with  the  cases  of  C.  &  R.  I.  Co.  vs.  Still,  19  111. 
499  (1858),  and  Galena  &  C.  U.  R.  Co.  vs.  Jacobs,  20  111.  478  (1858). 

Mr.  Justice  Breese,  in  the  latter  case,  states  the  comparative  negligence 
rule  as  follows: 

"The  question  of  liability  does  not  .depend  absolutely  on  the  absence 
of  all  negligence  on  the  part  of  the  plaintiff,  but  upon  the  relative  degree  of 
care  or  want  of  care,  as  manifested  by  both  parties,  for  all  care  or  negligence 
is  at  best  but  relative,  the  absence  of  the  highest  possible  degree  of  care 
showing  the  presence  of  some  negligence,  slight  as  it  may  be.  The  true 
doctrine,  therefore,  we  think  is,  that  in  proportion  to  the  negligence  of  the 
defendant,  should  be  measured  the  degree  of  care  required  of  the  plaintiff— 
that  is  to  say,  the  more  gross  the  negligence  manifested  by  the  defendant, 
the  less  degree  of  care  will  be  required  of  the  plaintiff  to  enable  him  to 
recover." 

The  doctrine  of  comparative  negligence,  after  the  decision  of  these 
two  cases  in  1858,  was  recognized  and  followed  by  our  courts  until  1885: 
The  application  of  this  rule  to  the  particular  case  afforded  an  opportunity 
to  the  court  to  mitigate  in  part  the  harshness  of  the  rules  relating  to 
contributory  negligence,  and  made  it  generally  necessary  to  submit  the 


48  EMPLOYERS'  LIABILITY  COMMISSION 

question  to  the  jury  to  determine  the  relative  degrees  of  negligence  of  the 
master  and  his  servant.  The  rule  was  therefore  a  favorable  one  for  the 
servant  in  its  practical  operation,  although  there  is  very  little  difference, 
as  an  abstract  proposition  of  law,  between  the  slight  negligence  permitted 
to  the  servant  under  the  comparative  negligence  rule,  and  the  ordinary 
care  required  of  him  under  the  present  rule. 

In  1885,  as  above  stated,  our  Supreme  Court,  in  the  case  of  Calumet 
Iron  &  Steel  Co.  vs.  Martin,  115  111.  358,  after  an  extended  review  of  the 
authorities,  beginning  with  the  Jacobs  case,  supra,  broke  away  from  the 
comparative  negligence  doctrine  by  explaining  that  Mr.  Justice  Breese  and 
the  earlier  judges  in  whose  decisions  the  doctrine  had  arisen,  had  no 
intention  of  announcing  any  other  rule  than  that  the  servant  must  exercise 
ordinary  care.  The  Court,  speaking  by  Mr.  Justice  Scholfield,  on  page  367 
of  its  opinion,  says: 

"Within  the  contemplation  of  that  rule,  where  one  has  observed  ordi- 
nary care  with  reference  to  the  particular  circumstances  involved  for  his 
personal  safety,  he  has,  even  if  slightly  negligent,  observed  all  the  care 
the  law  requires  of  him ;  and  where,  having  observed  this  care,  he  is  injured 
by  the  negligence  of  another,  that  other  has  been  guilty  of  the  degree  of 
negligence  for  which  the  law  charges  responsibility." 

It  seems  to  be  the  general  opinion  that  because  of  the  very  great  prac- 
tical difficulty  in  apportioning  the  damages,  according  to  the  degrees  of  negli- 
gence, and  in  fixing  with  any  real  certainty  the  ratio  of  negligence  between 
the  parties,  the  comparative  negligence  rule  is  an  unsatisfactory  one'  in  its 
practical  operation. 

KELEASE  OF  LIABILITY. 

The  servant  or  employe  cannot,  by  contract  made  in  advance  of  the 
employment,  release  the  master  or  employer  from  possible  results  of  his 
negligence  or  from  his  duty  to  comply  with  statutory  requirements. 

Chicago,  etc.,  vs.  Peterson,  39  111.  App..ll4. 

Our  courts  have  held,  however,  that  a  contract  of  membership  between 
the  employe  and  the  employer's  voluntary  relief  department,  which  permits 
the  employe,  in  case  of  injury,  either  to  sue  for  damages  or  accept  the 
benefit  of  the  relief  fund,  but  which  makes  the  acceptance  of  such  fund, 
after  the  injury,  a  release  and  satisfaction  of  his  damages,  is  not  against 
public  policy  and  is  binding  upon  the  employe. 

Eckerman  vs.  C.  B.  &  Q.  R.  Co.,  169  111.  312. 

It  is  held  that  such  relief  associations  under  our  law  are  not  insurance 
companies  and  are  not  therefore  subject  to  the  general  laws  relating  to 
insurance. 

Eckerman  vs.  C.  B.  &  Q.  supra. 

2.    STATUTORY  LAW. 

In  addition  to  the  comprehensive  statute  relating  to  mines  and  mining, 
and  the  child  labor  law,  to  which  we  have  above  referred,  we  have  a  statute 
giving  a  right  of  action  for  death  of  an  injured  person  to  his  heirs  at 
law  and  next  of  kin,  such  right  to  be  governed  by  the  same  rules  which 
would  control  the  injured  person  if  living,  the  amount  of  compensation 
being  limited  to  $10,000. 

Kurd's  Rev.  Stat,  chap.  70,  p.  1184. 


EMPLOYERS'  LIABILITY  COMMISSION  49 

We  also  have  a  statute  requiring  automatic  couplers,  grab  irons  and 
train  brakes  on  all  railroads  (Kurd's  Rev.  Stat,  p.  1707,  sec,  223,  224,  226), 
and  a  statute  requiring  blowers  on  metal  polishing  machinery  (Kurd's  Rev. 
Stat.,  ch.  48,  sec.  43) ,  and  a  further  statute  requiring  guards  on  all  dangerous 
machinery  and  fences  around  dangerous  places  in  all  factories  and  work- 
shops (Kurd's  Rev.  Stat,  ch.  48,  sec.  49,  et  seq.),  and  another  requiring 
guards  and  safety  devices  to  be  used  in  the  construction,  alteration  and 
decoration  of  high  buildings,  etc.  (Kurd's  Rev.  Stat.,  ch.  48,  sec.  79.) 

With  regard  to  agricultural  implements,  we  have  a  statute  requiring 
guards  on  threshing  machines  and  corn  shellers,  passed  in  1869.  (Kurd's 
Rev.  Stat,  ch.  70,  sec.  3.) 

Our  courts  generally  hold  that  failure  to  comply  with  any  of  the  safety 
provisions  of  such  statutes  is  prima  facie  evidence  of  negligence,  which 
means,  in  practice,  that  if  the  servant  or  employe  were  injured  under  such 
circumstances,  all  that  he  would  be  required  to  prove  in  the  first  instance 
would  be  his  injury  and  the  failure  of  his  master  to  comply  with  that 
provision  of  the  statute,  which  was  involved  in  the  happening  of  the  acci- 
dent, and  that  such  failure  was  the  proximate  cause  of  the  injury. 


SUMMARY. 

It  would  therefore  seem  that  under  the  common  law  in  force  today 
in  Illinois,  as  modified  in  some  few  instances  by  statute,  the  servant,  or 
employe,  or  his  dependents,  in  case  of  his  death,  may  recover  compensa- 
tion by  an  action  at  law  for  injuries  sustained  by  the  servant  or  employe 
during  the  course  and  while  in  the  performance  of  his  duty  as  such  servant 
or  employe,  if  it  can  be  successfully  proved  that  the  master  or  employer 
failed  in  his  duty: 

1.  To  provide  a  reasonably  safe  place  for  the  servant  to  work,  or 

2.  To  provide  reasonably  safe  tools  or  appliances  for  the  servant  to 
work  with,  or 

3.  To  exercise  due  care  in  the  selection  of  reasonably  safe  employes 
with  which  the  servant  is  to  work,  and  also 

4.  That   the   servant   has   not   been   guilty   of   negligence   proximately 
contributing  to  the  injury  complained  of,  and  that  such  servant  makes  a 
prima  facie  case  entitling  him  to  recover  when  he  can  successfully  prove 
that  the  master  has  violated  some  provision  of  the  statute  in  regard  to 
safety,  which  fault  is  the  proximate  cause  of  the  injury  sustained. 

That  the  defenses  available  for  the  master  to  such  action  by  the  servant 
are  the  common  law  defenses  (generally  unmodified  by  statute)  of 

1.  Fellow  servant 

2.  Assumption  of  risk,  and 

3.  Contributory  negligence. 

That  the  real  test  of  fellow  servants  is  not  the  working  together  In 
the  same  line  of  employment,  so  much  as  the  habitual  association  of  the 
servants  in  such  a  way  as  that  they  exercise  over  each  other  an  influence 
promotive  of  common  caution— the  earlier  common  law  rule  being  limited 
to  that  extent; 


60  EMPLOYERS'  LIABILITY  COMMISSION 

And  that  the  common  law  defenses  of  assumption  of  risk  and  con- 
tributory negligence  remain  substantially  unchanged  except  that  in  actions 
brought  under  the  mining  law,  they  are  not  available  to  the  master  or  mine 
owner,  and  that  the  doctrine  of  comparative  negligence  has  been  abandoned, 
and  the  servant  must  now  prove  that  he  was  exercising  ordinary  care  and 
was  not  guilty  of  any  negligence  directly  contributing  to  the  injury; 

That  the  question  presented  by  these  defenses  are  ordinarily  questions 
of  fact  for  a  jury  to  determine,  if  there  is  any  controversy  about  the  mat- 
ter, or  reasonable  minds  could  differ  as  to  whether  such  defenses  were 
proven  by  the  evidence  to  exist,  and 

That,  by  statute,  the  heirs  of  the  deceased  servant  have  the  same  right 
of  action  that  the  injured  servant  would  have,  if  living,  the  amount  recover- 
able being  limited  to  $10,000; 

That  the  servant  or  employe  cannot  exempt  the  master  or  employer  in 
advance  from  the  consequences  of  his  negligence,  but  that  the  servant 
or  employe  may  bind  himself  either  to  sue  at  law  or  accept  the  benefits 
of  a  relief  fund;  such  acceptance  after  the  injury  to  be  a  bar  to  his  right 
of  action  at  law. 

Respectfully  submitted, 

SAMUEL  A.  HARPER. 


ATTORNEY'S  FINAL  REPORT 
AND  RECOMMENDATIONS 


DDDD 


The  Commission  having  determined,  tentatively,  upon  the  workmen's  com- 
pensation plan,  as  probably  the  most  desirable  method  of  covering,  by  legisla- 
tion, the  entire  field  of  liability  for  industrial  accidents,  requested  a  report 
from  its  attorney  upon  the  applicability  of  the  workmen's  compensation  plan 
(based  upon  the  English  and  similar  systems)  to  the  general  conditions  exist- 
ing in  the  State  of  Illinois,  and  the  constitutionality  of  such  a  law  here. 

CONSTITUTIONALITY  OF  WORKMEN'S  COMPENSATION  LAWS. 
By  Samuel  A.  Harper,  of  Chicago. 

The  general  question  involved  in  a  discussion  of  the  constitutionality 
of  a  Workmen's  Compensation  law  in  this  State  is:  Can  the  Legislature 
change  the  basis  of  recovery  between  employe  and  employer  from  the  negli- 
gence or  fault  of  the  employer  to  an  absolute  liability,  based  on  the  ordi- 
nary and  inherent  risks  of  the  industry? 

The  right  of  the  employe  to  recover  damages  from  his  employer  for 
personal  injury  received  by  the  employe  in  the  course  of  his  employment 
has  existed  for  many  years,  at  common  law.  About  three  hundred  years 
ago  the  courts  adopted  the  doctrine  of  respondeat  superior,  which  extended 
the  liability  of  the  employer  for  such  personal  injury  to  the  negligent 
acts  of  the  employer's  agents  and  servants.  This  general  common  law 
right  of  the  employe  existed  at  the  time  of  the  adoption  of  the  Constitution 
of  the  United  States  and  of  the  Constitution  of  the  State  of  Illinois,  and 
is  merely  one  of  a  large  class  of  so-called  tort  cases,  in  which  one  person 
injured  by  the  negligence  of  another  has  a  right  of  redress,  for  the  wrong 
committed,  in  the  form  of  compensation  for  the  damages  which  he  has 
sustained. 

No  other  method  of  legal  compensation  is  known  to  American  law  today. 
The  common  law  of  England,  including  this  rule  in  regard  to  tort  liability, 
has  been  adopted  in  this  country,  and  our  various  Constitutions  and  Bills 
of  Right  have  been  adopted  with  reference  thereto.  In  addition  to  this, 
the  Legislature  of  the  State  of  Illinois  provided  by  statute  enacted  in  1874, 
four  years  after  the  adoption  of  our  present  Constitution,  that  "the  com- 
mon law  of  England,  so  far  as  the  same  is  applicable,  and  of  a  general 
nature,  and  all  statutes  or  acts  of  the  British  Parliament,  made  in  aid 
thereof,  and  to  supply  the  defects  of  the  common  law  *  *  *  and  which 
are  of  a  general  nature,  and  not  local  to  that  Kingdom,  shall  be  the  rule  of 


52  SI  EMPLOYERS'  LIABILITY  COMMISSION 

decision,  and  shall  be  considered  of  full  force  until  repealed  by  legislative 
authority." 

Kurd's  Rev.  Stat,  ch.  28,  p.  485. 

While  the  common  law  rules  regulating  the  relation  of  master  and  serv- 
ant have  remained  practically  unchanged  in  Illinois,  nearly  every  country 
in  Europe  has  adopted  a  legislative  plan  of  automatic  compensation  for 
accidental  injuries  which  disregards  entirely  the  question  of  the  master's 
fault  or  negligence.  England  began  its  legislative  changes  in  the  law 
of  employer's  liability  with  the  Gladstone  Act  of  1880;  and  after  adding 
various  amendments  during  the  next  seventeen  years,  finally  adopted  the 
Chamberlain  Act  of  1897,  which  is  a  compensation  law,  based  on  trade  risk. 
This  statute,  with  the  amendments  which  have  since  been  made  enlarging 
the  scope  of  the  original  act,  is  now  the  law  of  England. 

European  countries,  of  course,  have  no  written  constitutions  or  bills 
of  right,  which  may  not  at  any  time,  in  the  legislative  judgment,  be  amended 
by  legislative  enactment,  and  the  adoption  of  workmen's  compensation  laws 
have  not,  therefore,  been  fraught  with  the  legal  difficulties  necessarily 
involved  in  any  such  attempted  legislation  in  this  country.  The  English  Par- 
liament has  a  perfect  right  to  amend  Magna  Charta  itself  by  legislative  act, 
if  it  sees  fit  to  do  so,  whereas  the  written  Constitutions  of  the  States  are  not 
subject  to  legislative  change,  and  the  organic  law  can  only  be  amended  by 
the  cumbersome  and  difficult  method  prescribed  in  the  Constitution  itself. 

In  the  absence  of  a  constitutional  amendment,  therefore,  a  compulsory 
workmen's  compensation  law  in  the  State  of  Illinois,  or  in  any  other  State 
in  the  Union,  must  find  its  justification  in  the  general  police  power  of 
the  State,  to  the  reasonable  exercise  of  which  all  constitutional  provisions 
are  subject 

Reverting,  then,  to  the  question  stated  at  the  outset,  the  proposition 
to  be  determined  is  whether  the  Legislature  of  the  State  of  Illinois  can 
pass  a  law,  in  the  exercise  of  the  police  power  of  the  State,  providing  for 
a  compulsory  system  of  compensation  for  industrial  accidents,  regardless 
of  all  questions  of  fault  or  negligence. 

DUAL  FORM  OF  GOVERNMENT. 

A  comprehensive  discussion  of  this  question  would  seem  to  require 
some  consideration  at  the  beginning  of  the  dual  form  of  government  under 
which  we  live. 

The  Government  of  the  United  States  is  one  of  delegated  and  enumer- 
ated powers,  the  National  Constitution  being  the  instrument  which  specifies 
them,  and  in  which  authority  should  be  found  for  the  exercise  of  any 
power  which  the  National  Government  assumes  to  possess.  In  this  respect 
it  differs  from  the  constitutions  of  the  several  States,  which  are  not  grants  of 
power  to  the  States,  but  which  apportion  and  impose  restrictions  upon  the 
powers  which  the  States  inherently  possess.  The  National  government  has 
only  those  powers  which  are  granted  to  it  by  the  Constitution,  while  the  State 
government  possesses  all  those  inherent  powers  of  sovereignty  which  are  not 
expressly  limited  or  taken  away  by  the  State  constitution,  or  exclusively 
granted  to  the  National  government  by  the  Federal  constitution. 

Cooley's  Cons.  Lim.,  7th  Ed.,  p.  11. 


ThA 


EMPLOYERS'  LIABILITY  COMMISSION  53 


The  police  power  of  the  State  is  neither  exclusively  granted  to  the 
National  government  by  the  Federal  constitution  nor  denied  by  the  State 
constitution  to  the  State  itself. 

The  amendments  to  the  Federal  constitution,  among  other  things,  pro- 
vide: 

"Article  IX.  The  enumeration  in  the  constitution  of  certain  rights  shall 
not  be  construed  to  deny  or  disparage  others  retained  by  the  people." 

"Article  X.  The  powers  not  delegated  to  the  United  States  by  the  con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people." 

It  is  well  settled  that  the  police  power  is  one  of  the  incidents  of 
sovereignty,  which  neither  National  nor  State  constitution  has  granted  away 
or  limited,  and  that  it  inheres  in  the  State  as  well  as  in  the  Federal 
government  and  cannot  be  bartered  or  contracted  away. 

U.  S.  vs.  DeWitt,  9  Wall.  41. 

Slaughter  House  Cases,  16  Wall.  36. 

Barbier  vs.  Connolly,  113  U.  S.  27. 

Mugler  vs.  Kansas,  123  U.  S.  623. 

It  is  even  held  that  the  commerce  clause  of  the  Federal  constitution, 
which  provides: 

"Congress  shall  have  power  *  *  *  to  regulate  commerce  with 
foreign  nations  and  among  the  several  States  and  with  the  Indian 
tribes  *  *  *  ."  (Constitution  of  U.  S.,  Art.  1,  Sec.  8.) 
was  not  intended  to  take  away  the  police  power  of  the  States,  it  being 
construed  merely  as  a  limitation  upon  the  powers  of  the  States,  requiring 
them  to  restrict  the  exercise  of  their  police  power  to  matters  of  local 
concern,  and  to  refrain  from  attempting  to  regulate  conditions,  with  regard 
to  which  Congress  had  already  acted  in  a  proper  way. 


THE  POLICE  POWER. 

The  subject  of  compulsory  compensation  falling  then  directly  within 
the  police  power,  and  the  State  having,  as  we  have  seen,  a  clear  and  undis- 
puted right  to  its  exercise,  it  becomes  important  to  inquire  just  what  is  meant 
by  the  term  "police  power"  as  used  by  the  courts. 

Judge  Cooley  described  the  police  power  in  general  terms,  as  follows : 

"The  police  power  of  a  State  in  a  comprehensive  sense  embraces  its 
whole  system  of  internal  regulation,  by  which  the  State  seeks  not  only 
to  preserve  the  public  order  and  to  prevent  offenses  against  the  State,  but 
also  to  establish  for  the  intercourse  of  citizen  with  citizen,  those  rules  of 
good  manners  and  good  neighborhood,  which  are  calculated  to  prevent  a 
conflict  of  rights  and  to  insure  to  each  the  uninterrupted  enjoyment  of 
his  own,  so  far  as  is  reasonably  consistent  with  a  like  enjoyment  of  rights 
by  others." 

Cooley's  Const.  Lira.   (6th  Ed.),  704. 

Professor  Freund,  in  the  introduction  to  his  "Police  Power,"  defines 
the  term  as 


54  EMPLOYERS'  LIABILITY  COMMISSION 

"The  power  of  promoting  the  public  welfare  by  restraining  and  regu- 
lating the  use  of  liberty  and  property." 

Freund,  Police  Power,  p.  iii. 

Professor  .George  F.  Tucker  of  the  Boston  Law  School  has  given  it  the 
following  modern  application: 

"Police  power  is  the  name  given  to  that  inherent  sovereignty  which  it 
is  the  right  and  duty  of  the  government  or  its  agents  to  exercise  whenever 
public  policy  in  a  broad  sense  demands,  for  the  benefit  of  society  at  large, 
regulations  to  guard  its  morals,  safety,  health,  order,  or  to  insure  in  any 
respect  such  economic  conditions  as  an  advancing  civilization  of  a  highly 
complex  character  requires." 

8  Cyc.  863. 

.  In  seeking  to  apply  the  principles  of  the  law  relating  to  the  police 
power  of  the  State,  to  the  specific  question  of  compulsory  compensation 
based  solely  on  trade  risk,  we  are  confronted  with  three  questions  of  para- 
mount importance  and  difficulty: 

1.  How  far  may  the  rule  of  absolute  liability   be  imposed  upon  the 
master  for  injuries  to  his  servant? 

2.  How  far  may  the  right  of  trial  by  jury  of  both  master  and  servant 
be  limited? 

3.  How  may  the  classification  of  affected  trades  be  made  so  as  to  be 
considered  reasonable  and  not  arbitrary? 

I.    THE  RULE  OF  ABSOLUTE  LIABILITY. 

The  great  power  vested  in  a  State  and  its  subordinate  agencies,  called 
the  police  power,  under  which  life,  liberty  and  property  may  be  taken, 
existed  from  the  dawn  of  government,  was  recognized  in  the  Colonies  at 
the  time  of  the  Declaration  of  Independence,  and  was  always  exercised 
by  the  States,  notwithstanding  clauses  in  their  own  constitutions,  declar- 
ing that  no  person  should  be  deprived  of  life,  liberty  or  property  without 
due  process  of  law,  and  the  exercise  of  such  power  by  the  States  was 
always  held  to  be  entirely  consistent  with  such  constitutional  provisions. 
These  powers  cannot  properly  be  called  exceptions  from  the  constitutional 
demand  of  due  process  of  law,  for  they  are  in  themselves  due  process. 
When  the  Fourteenth  Amendment  was  adopted  it  came  not  to  destroy 
rights  existing  in  the  States;  it  did  not  undertake  even  to  define  due 
process  of  law  or  to  declare  or  indicate  what  already  were  or  should  there- 
after be  the  legitimate  powers  of  the  States;  it  used  only  the  common 
law  expression  "due  process  of  law,"  as  a  local  phrase  of  common  import, 
describing  a  pre-existing  thing.  The  amendment  neither  originated,  enlarged 
nor  narrowed  that  expression  in  its  meaning.  Plainly,  then,  this  amendment 
and  the  similar  provision  in  our  State  constitution  does  not  in  any  way 
impair  the  lawful  police  power  of  the  State. 

Brannon  on  Fourteenth  Amendment,  p.  167,  168. 

The  moment  the  State,  however,  by  any  of  its  agencies,  attempts  to 
interfere  in  any  way  with  the  personal  relationship  of  master  and  servant 
or  to  regulate  in  any  manner  the  express  or  implied  contract  of  hiring, 
the  cry  becomes  loud  and  persistent  that  personal  freedom  of  action  and 
the  individual  liberty  of  contract  must  be  preserved,  and  any  effort  made 
by  the  Legislature  to  impose  a  rule  of  absolute  liability  upon  the  master 


EMPLOYERS'  LIABILITY  COMMISSION  55 

for  injuries  to  the  servant,  disturbing,  as  it  must,  the  private  arrangement 
which  they  have  voluntarily  made  between  themselves,  will  naturally  be 
met  with  the  same  objection. 

Aside  from  those  cases  involving  questions  of  contributory  negligence, 
practically  all  cases  in  which  the  master  is  held  not  to  be  liable  for  the 
injury  to  the  servant,  are  actions  in  which  the  servant  is  virtually  held 
to  have  agreed,  as  a  matter  of  law,  upon  entering  into  the  contract  of 
hiring,  that  he  assumes  the  risk  of  the  injury  complained  of.  It  is  some- 
times spoken  of  as  an  implied  term  of  the  contract  of  hiring. 

But  even  the  right  to  make  simple  contracts  of  hiring  is  not,  in  the 
proper  sense,  an  absolute  and  unqualified  natural  right,  free  from  all  legis- 
lative interference,  for  the  courts  have  in  recent  years,  in  a  great  variety 
of  cases,  sustained  the  reasonable  exercise  of  legislative  authority  touch- 
Ing  matters  of  private  contract. 

Muller  vs.  Oregon,  208  U.  S.  412. 

Ritchie  vs.  Wayman  et  al,  244  111.  509. 

Holden  vs.  Hardy,  169  U.  S.  366. 

The  idea  that  the  right  of  contract  is  an  absolute  and  unrestricted  one 
and  that  men  can  fix  their  rights  and  duties  by  agreement  has  been  termed 
"an  unruly  and  anarchial  idea.  If  there  is  to  be  any  law  at  all,  contract  must 
be  taught  to  know  its  place." 

2  Poll.  &  Maitland's  History  of  English  Law,  2nd  Ed.,  232. 

1  Andrews'  American  Law,  2nd  Ed.,  sec.  1045. 

Any  student  of  politics  will  observe  that  unlimited  freedom  of  action 
and  the  absolute,  untrammelled  right  of  contract  have,  at  times,  led  to 
extravagant  political  inequality,  and  also  permitted  individual  servitude  In 
no  way  distinguishable  from  slavery;  and  all  must  agree  that  by  no  form 
of  contract  or  consent  can  one  man  confer  upon  another  the  power  to 
exercise  such  physical  restraint  upon  his  liberty. 

Mill  on  Liberty,  ch.  5. 

1  Andrews'  Amer.  Law,  2nd  Ed.,  sec.  462,  p.  582. 

The  relation  of  service  may  rest  on  voluntary  contract  and  yet  be 
contrary  to  public  policy.  It  has  been  held  that  this  may  be  so,  for  the 
reason  that  the  conditions  of  the  contract  subject  the  servant  or  employe 
to  the  arbitrary  discretion  of  the  employer. 

Parsons  vs.  Trask,  7  Gray,  473. 

Matter  of  Mary  Clark,  1  Blackf.  122. 

It  is  often  overlooked  that  liberty  has  been  brought  about  quite  as  much 
by  the  limitation  of  the  right  of  contract  as  by  limitations  upon  govermental 
power. 

See  Justice  Holmes'  opinion  in  Lochner  vs.  New  York,  198  U.  S.  75. 

Mr.  Bryce  says  that: 

"The  hesitation  shown  by  American  States  in  interfering  with  the 
individual  rights  of  citizens  is  not  due  so  much  to  constitutional  objec- 
tions as  it  is  to  the  ingrown  doctrines  of  individualism,  which  the  history 
of  the  country  and  the  circumstances  of  its  origin  hare  done  so  much  to 
encourage." 

2  Bryce  Amer.  Commonwealth,  410. 


56  EMPLOYERS'  LIABILITY  COMMISSION 

The  constitutional  provisions  to  which  Mr.  Bryce  refers,  and  which 
are  so  often  invoked  in  an  attempt  to  nullify  the  police  regulations  of  the 
State  are, 

(Amendments  to  the  Federal  constitution:) 

"Article  V.  No  person  shall  *  *  *  be  deprived  of  life,  liberty  or 
property  without  due  process  of  law  *  *  *  * ." 

"Article  XIV,  Sec.  1.  *  *  *  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States,  nor  shall  any  State  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law,  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  law." 

And: 

(Illinois  constitution:) 

"Article  II,  Sec.  1.  All  men  are  by  nature  free  and  independent,  and 
have  certain  inherent  and  inalienable  rights — among  them  are  life,  liberty 
and  the  pursuit  of  happiness  *  *  * ." 

"Sec.  2.  No  person  shall  be  deprived  of  life,  liberty  or  property  with- 
out due  process  of  law  *  *  * ." 

The  quotation  from  the  Illinois  constitution,  Art.  II,  Sec.  2,  supra,  is  in 
substance  the  provision  contained  in  the  Declaration  of  Independence,  and 
is  the  clause  which  has  been  incorporated  in  the  constitution-  of  practically 
every  State  in  the  Union.  This  provision  follows  practically  the  language 
of  Magna  Charta,  which  is: 

"No  freeman  shall  be  imprisoned  or  disseized  of  his  freehold,  liberties 
or  privileges  or  outlawed  or  exiled  or  in  any  manner  deprived  of  his  life, 
liberty  or  property,  but  by  the  judgment  of  his  peers  or  the  law  of  the 
land." 

These  constitutional  provisions  would  seem  to  interpose  an  almost  insur- 
mountable obstacle  in  the  way  of  any  legislation  imposing  a  rule  of  absolute 
liability  upon  the  master,  whereby  his  property  would  be  taken  away  from 
him  and  given  to  the  servant  in  compensation  for  any  injury  for  which, 
at  common  law,  the  master  could  in  no  way  be  held  responsible. 

It  is  interesting  to  note,  however,  historically,  that  the  Supreme  Court 
of  Illinois,  in  an  early  case,  in  passing  upon  the  scope  of  the  provisions 
from  Magna  Charta,  quoted  supra,  held  that  it  applied  originally  to  criminal 
charges  only,  and  said  that: 

"If  it  was  also  intended  to  relate  to  civil  proceedings,  it  must  be  taken 
In  a  very  limited  and  restricted  sense." 

Rheinhart  vs.  Schuyler,  7  111.  473,  520. 

And  it  has  many  times  been  held  that  a  statute  does  not  work  such 
a  deprivation  of  property  "without  due  process  of  law,"  in  the  constitutional 
sense,  simply  because  it  imposes  burdens  or  abridges  freedom  of  action 
or  regulates  occupations,  or  subjects  individuals  or  property  to  restraints 
which  are  reasonably  necessary,  in  the  legislative  judgment,  for  the  general 
welfare  of  the  people.  Legislation,  under  the  police  power,  infringes  the 
constitutional  guaranty  only  when  it  is  extended  to  subjects  not  within 
Its  scope  and  purview,  as  that  power  was  defined  and  understood  when 
the  constitution  was  adopted. 

People  vs.  Budd,  117  N.  Y.  1. 


EMPLOYERS'  LIABILITY  COMMISSION  57 

Even  the  practical  confiscation  resulting  from  the  enforcement  of  pro- 
hibition and  oleomargarine  laws,  is  within  the  police  power  of  the  State,  and 
is  not  considered  the  taking  of  property  without  compensation,  within  the 
constitutional  inhibition. 

Mugler  vs.  Kansas,  123  U.  S.  523. 

Powell  vs.  Pennsylvania,  127  U.  S.  678. 

Many  instances  of  the  application  of  the  rule  of  absolute  liability  and 
the  practical  confiscation  of  property  thereby,  are  to  be  found  in  the  books. 

For  example,  a  statute  of  the  State  of  Kansas  makes  railroad  com- 
panies liable  for  damage  done  by  fire  escaping  from  the  locomotive  engines 
of  the  railroad  company,  regardless  of  any  question  of  negligence,  the 
statute  only  requiring  that  the  injured  person  prove  in  the  first  instance 
that  the  damage  has  been  done  and  that  the  injury  is  the  proximate  result 
of  the  accident.  The  Supreme  Court  of  the  United  States,  in  passing  upon 
this  statute,  held  it  to  be  a  proper  exercise  of  the  police  power,  and  not  in 
conflict  with  the  Fourteenth  Amendment.  The  Court,  among  other  things, 
said: 

"The  dangerous  element  employed  and  the  hazards  to  persons  and  prop- 
erty, arising  from  the  running  of  trains  and  the  operation  of  railroads, 
justifies  such  a  law;  and  the  fact  that  all  persons  and  corporations  brought 
under  its  influence  are  subjected  to  the  same  duties  and  liabilities  under 
similar  circumstances,  disposes  of  the  objections  raised  *  *  * ." 

"It  is  also  a  maxim  of  constitutional  law  that  a  Legislature  is  presumed 
to  have  acted  within  constitutional  limits,  upon  full  knowledge  of  the  facts, 
and  with  the  purpose  of  promoting  the  interests  of  the  people  as  a  whole, 
and  courts  will  not  lightly  hold  that  an  act  duly  passed  by  the  Legislature 
was  one  in  the  enactment  of  which  it  transcended  its  powers." 

A.  T.,  etc.,  Ry.  Co.  vs.  Matthews,  174  U.  S.  96,  99,  104. 

A  similar  decision  was  reached  by  the  same  court  in  passing  upon  a 
like  statute  of  the  State  of  Missouri. 

St.  Louis  &  San  Francisco  Ry.  Co.  vs.  Matthews,  165  U.  S.  1. 

In  a  similar  case  in  Illinois  our  Supreme  Court  held  that  when  it 
appears  that  fire  has  escaped  from  a  railroad  locomotive  it  will  6e  presumed 
that  the  company  was  not  employing  the  best  known  contrivances  to  retain 
the  fire,  and  it  will,  to  rebut  this  presumption,  devolve  upon  the  company 
to  show  that  such  machinery  was  thus  employed  and  in  repair.  Mr.  Justice 
Breese,  writing  a  separate  opinion,  In  discussing  the  dangerous  character 
of  the  railroad  industry,  says: 

"I  cannot  believe  there  is  the  slightest  analogy  between  individual 
action  and  conduct,  and  that  of  an  association  running  and  controlling 
such  dangerous  machines  as  railroad  locomotives.  Nor  can  I  think  the 
care  and  diligence  a  prudent  man  would  use  about  his  own  property  is 
of  the  same  grade  as  that  required  of  railroad  companies.  For  the  safety 
of  the  people  and  their  property,  a  degree  much  higher  ought  to  be  required. 
The  care  and  diligence  required  in  every  case  should  have  some  relation 
or  affinity  to  the  nature  of  the  business,  and  to  the  instrumentalities  ~by  which 
it  is  conducted" 

Another  instance  of  the  imposition  of  a  new  liability  unknown  to  the 
common  law,  is  the  so-called  dramshop  legislation  of  New  York,  Illinois 


58  EMPLOYERS'  LIABILITY  COMMISSION 

and  other  States.  These  statutes,  as  a  general  rule,  make  the  owner  of 
the  premises  leased  by  him  for  saloon  purposes  responsible  in  damages 
to  any  person  suffering  loss  by  reason  of  the  injury  or  death  of  another 
person  caused  by  the  sale  of  intoxicating  liquors.  The  New  York  Court 
of  Appeals,  in  passing  upon  the  New  York  statute  and  sustaining  its  con- 
stitutionality, among  other  things,  said : 

"And  the  act  of  1873  is  not  invalid  because  it  creates  a  right  of  action 
and  imposes  a  liability  not  known  to  the  common  law.  There  is  no  such 
limit  to  legislative  power.  The  Legislature  may  alter  or  repeal  the  common 
law.  It  may  create  new  offenses,  enlarge  the  scope  of  civil  remedies  and 
fasten  responsibility  for  injuries  upon  persons  against  whom  the  common 
law  gives  no  remedy.  We  do  not  mean  that  the  Legislature  may  impose  upon 
one  man  liability  for  an  injury  suffered  by.  another,  with  which  he  had 
no  connection. 

But  it  may  change  the  rule  of  the  common  law,  which  looks  only  to 
the  proximate  cause  of  the  mischief,  in  attaching  legal  responsibility,  and 
allow  a  recovery  to  be  had  against  those  whose  acts  contribute,  although 
remotely,  to  produce  it.  This  is  what  the  Legislature  has  done  in  the  act 
of  1873.  That  there  is  or  may  be  a  relation,  in  the  nature  of  cause  and 
effect,  between  the  act  of  selling  or  giving  away  intoxicating  liquors,  and 
the  injuries  for  which  a  remedy  is  given,  is  apparent,  and  upon  this  rela- 
tion the  Legislature  has  proceeded  in  enacting  the  law  in  question.  It  is 
an  extension,  by  the  Legislature,  of  the  principle  expressed  in  the  maxim, 
'Sic  uter  tuo  ut  alienum  non  laedas,'  to  cases  to  which  it  had  not  before 
been  applied,  and  the  propriety  of  such  an  application  is  a  legislative  and 
not  a  judicial  question." 

Bertholf  vs.  O'Reilly,  74  N.  Y.  509. 

Our  Supreme  Court,  in  passing  upon  the  Illinois  law,  held  that  it  did 
not  deprive  the  owner  of  his  property  without  due  process  of  law,  and 
expressly  approved  of  Bertholf  vs.  O'Reilly,  supra,  in  the  following  language : 

"In  Bertholf  vs.  O'Reilly,  74  N.  Y.  509,  it  was  held  that  the  owner  of 
a  building  who  lets  it  to  be  occupied  for  the  sale  of  intoxicating  liquors, 
assumes  the  risk  of  having  a  lien  imposed  by  a  statute  enforced  by  a  decree 
of  court  in  favor  of  any  one  who  has  secured  a  judgment  against  the  seller 
for  injury  to  his  means  of  support.  He  may  let  or  use  his  premises  aF 
a  place  for  the  sale  of  liquors,  subject  to  the  liability  which  an  act  o' 
that  kind  imposes.  The  Supreme  Court  of  Kansas  has  also  held  that  8 
law  subjecting  premises  leased  or  occupied  for  the  sale  of  intoxicating  liquoi 
to  a  lien  for  fines  and  costs  assessed  against  the  occupant  does  not  con 
travene  any  provision  of  the  constitution.  (Hardten  vs.  State,  32.  Kan.  637.) 
The  Supreme  Court  of  Ohio  has  held  that  the  provision  of  a  statute  prac 
tically  identical  with  out  own  (Streeter  vs.  People,  69  111.  595),  authorizing 
subjecting  the  property  of  the  owner  to  the  payment  of  a  judgment  recov- 
ered against  his  lessee,  does  not  violate  the  constitution  or  deprive  the 
lessor  of  his  property  without  due  process  of  law;  that  a  judgment  not 
obtained  by  fraud  or  collusion  is  conclusive  against  the  owner,  both  as  to 
the  sales  and  to  the  damages  resulting  therefrom,  and  that  in  a  proceeding 
to  subject  the  property  to  the  judgment  it  is  only  necessary  to  allege  the 


EMPLOYERS'  LIABILITY  COMMISSION  59 

facts  which,  under  the  statute,  make  the  premises  liable.  (Millen  vs.  Peck, 
49  Ohio  St.  447;  Gordon  vs.  Hailes,  59  id.  342.)" 

Wall  vs.  Allen,  244  111.  456,  463. 

Another  example  of  legislation  changing  the  rules  of  common  law, 
is  to  be  found  in  the  statutes  providing  for  the  registration  of  land  titles, 
commonly  known  as  the  "Torrens  System."  Under  our  constitutional  pro- 
vision that  no  man  shall  be  deprived  of  his  property  without  due  process 
of  law,  it  has  been  maintained  that  those  statutes  are  unconstitutional, 
because  registration  makes  the  title  absolute  and  not  open  to  subsequent 
attack,  however  meritorious  may  be  the  claim;  and  also  because  there  is 
no  sufficient  notice  required  to  be  given  to  and  no  sufficient  process  against 
persons  having  claims  adverse  to  the  applicant  for  title  registration,  etc. 
The  constitutionality  of  these  laws,  however,  has  been  sustained  in  Illinois, 
Minnesota,  Massachusetts,  Colorado,  Oregon,  etc.  Brewster  On  Convey- 
ancing, sec.  436. 

Another  striking  illustration  showing  the  extent  to  which  State  Legis- 
latures have  gone  in  imposing  a  liability  unknown  to  the  common  law, 
is  to  be  found  in  the  various  Pauper  acts  adopted  by  many  of  the  States 
of  the  Union,  following  the  precedent  set  by  England  in  the  Statute  of  43 
Elizabeth.  We  have  such  a  statute  in  Illinois,  which  has  been  sustained 
by  our  Supreme  Court  as  a  legitimate  exercise  of  legislative  power.  The 
Court,  in  passing  upon  the  law,  discusses  it  in  the  following  language: 

"The  principal  objections  urged  by  appellee  to  the  case  made  by  the 
complaint,  challenge  the  constitutionality  of  section  1  of  the  statute  in  rela- 
tion to  paupers,  which  provides  that  every  poor  person  who  shall  be  unable 
to  earn  a  livelihood  in  consequence  of  any  bodily  infirmity,  idiocy,  lunacy 
or  other  unavoidable  cause,  and  provided  the  pauperism  is  not  caused 
by  intemperance  or  other  bad  conduct,  shall  be  supported  by  the  father, 
grandfather,  mother,  grandmother,  children,  grandchildren,  brothers  or  sisters 
of  such  poor  person,  if  they  or  either  of  them,  be  of  sufficient  ability. 

*  *    *    "He  questions  the  power  of  the  Legislature  to  compel  a  man,  in 
any  event,  to  support  his  indigent  brothers  or  sisters,  and  urges  the  uncon- 
stitutionality  of  the  statute  on  these  two  grounds:     First,  that  the  Legisla- 
ture has  no  power  to  impose  upon  a  citizen  a  liability  of  this  character,  and, 
second,    that    the    method    prescribed   by    the    statute    for    its    enforcement 
deprives  him  of  that  due  process  of  law  to  which  he  is  entitled."     *    *    * 
"It  is  urged  that  our  statute  is  a  plain  attempt  on  the  part  of  our  Legis- 
lature to  impose  upon  one  person  a  legal  liability  for  the  support  of  another 
where  no  such  legal  duty  or  liability  existed  at  common  law,  and  is  taking 
one  man's  property  for   the  use  of  another  without   the  owner's   consent. 

*  *     *     "It   can   hardly   be   said   that   there   is   no   moral    duty   whatever 
imposed  upon  a  man  who  has  sufficient  financial  ability,  consistently  with 
his  duty  to  himself,  and  to  others,  to  supply  the  necessaries  of  life  to  a 
brother   or   sister   who   is   unable   to   earn   a   livelihood   in   consequence   of 
bodily  infirmity,  idiocy,  lunacy,  or  other  unavoidable  cause,  in  cases  where 
such    brother    or   sister   did   not    become   a    pauper   from    intemperance   or 
other  bad  conduct.     This  being  so,  our  statute  stands  upon  the  same  foot- 
Ing,   so   far   as   legal   principle   is   involved,   that   the  statute   of   Elizabeth 
stands  upon.     The  support  of  the  poor  is  a  public  duty,  and  in  case  of 


60  EMPLOYERS'  LIABILITY  COMMISSION 

the  default  of  him  upon  whom  is  imposed  a  prior  duty  to  afford  such 
support,  the  cost  of  providing  the  same  will  be  upon  the  politic.  The  object 
of  both  the  statute  of  Elizabeth  and  of  our  existing  statute  is  to  protect 
the  public  from  loss  occasioned  by  neglect  of  a  moral  or  natural  duty 
imposed  on  individuals,  and  to  do  this  by  transforming  the  imperfect  moral 
duty  into  a  statutory  and  legal  liability.  And  the  right  of  the  legislative 
department  of  government  to  change  an  imperfect  duty  into  a  perfect  duty, 
or  even  to  create  by  statute  a  new  legal  liability,  has  been  recognized  from 
time  immemorial." 

People  vs.  Hill,  163  111.  186,  189,  190. 

This  statute  would  seem  to  be  peculiarly  applicable  as  a  precedent 
for  legislation  providing  for  compulsory  compensation  for  industrial  injuries, 
at  least  50  per  cent  of  which  inevitably  occur,  if  the  business  is  to  be 
conducted  under  modern  conditions.  The  injuries  could  not  occur  but  for 
the  conduct  of  the  business  from  which  the  employer  makes  his  profit — 
and  it  might  therefore  with  reason  be  argued  that  all  that  is  sought  to 
be  done  by  a  compulsory  compensation  law,  is  to  "change  what  is  a  moral 
duty  into  a  legal  liability,  thus  lessening  a  public  burden,"  which  the 
court  in  the  Hill  case,  supra,  expressly  decides  the  Legislature  may  do. 

Again,  statutes  imposing  an  absolute  rule  of  liability  upon  railroad 
companies  for  injuries  to  passengers,  and  making  them  insurers  of  the 
safety  of  such  passengers,  have  been  sustained.  For  example,  the  statute 
of  Nebraska  (Compiled  Laws  of  Nebraska,  1889,  sec.  3,  c.  72),  provides 
that: 

"Every  railroad  company  as  aforesaid,  shall  be  liable  for  all  damages 
inflicted  upon  the  person  of  passengers  while  being  transported  over  its 
road  except  in  cases  where  the  injury  done  arises  from  the  criminal 
negligence  of  the  person  injured,  or  when  the  injury  complained  of  shall  be 
the  violation  of  some  express  rule  or  regulation  of  said  road  actually 
brought  to  his  or  her  notice." 

This  statute  was  sustained  by  the  Supreme  Court  of  the  United  States 
as  a  legitimate  exercise  of  the  State's  police  power.  The  Court  said: 

"Our  jurisprudence  affords  examples  of  legal  liability  without  fault, 
and  of  the  deprivation  of  property,  without  fault  being  attributable  to  its 
owner.  The  law  of  deodands  was  such  an  example.  The  personification 
of  the  ship  in  admiralty  law,  is  another.  Other  examples  are  afforded  in 
the  liability  of  the  husband  for  the  torts  of  the  wife— the  liability  of 
the  master  (to  third  persons)  for  the  acts  of  his  servants. 

"In  Missouri  Railway  Company  vs.  Mackay,  127  U.  S.  205,  a  statute 
of  Kansas  abrogating  the  common  law  rule  exempting  a  master  from  liability 
to  a  servant  for  the  negligence  of  a  fellow  servant,  was  sustained  against 
the  contention  that  such  statute  violated  the  Fourteenth  Amendment  of 
the  Constitution  of  the  United  States."  *  *  *  "It  seemed  to  the  able  judges 
who  decided  Coggs  vs.  Bernard,  that  on  account  of  the  conditions  which 
then  surrounded  common  carriers,  public  policy  required  responsibility  on 
their  part  for  all  injuries  to  and  losses  of  goods  intrusted  to  them,  except 
such  injuries  and  losses  which  occurred  from  the  acts  of  God  or  public 
enemies,  and  many  years  afterwards  Chancellor  Kent  praised  the  decision 
of  cases  which  declined  to  relax  the  rule  to  excuse  carriers  for  losses 


EMPLOYERS'  LIABILITY  COMMISSION  61 

by  fire."  *  *.  *  "The  common  law  doctrine  was  declared  by  Chief  Justice 
Holt,  in  Coggs  vs.  Bernard,  to  be  'a  politic  establishment,  contrived  by  the 
policy  of  the  law  for  the  safety  of  all  persons,  the  necessity  of  whose 
affairs  obliges  them  to  trust  these  sorts  of  persons,  that  they  may  be 
safe  in  their  ways  of  dealing.'  *  *  *  That  reason  may  not  apply  to 
passengers,  but  other  reasons  do  which  arise  from  the  conditions  which 
exist  and  surround  modern  railroad  transportation,  and  which  may  be  con- 
sidered as  strongly  justifying  a  rule  of  responsibility  for  injury  to  pas- 
sengers which  makes  sure,  as  the  common  law  rule  does,  that  responsibility 
be  not  avoided  by  excuses  which  do  not  exist,  or  the  disproof  of  which  might 
be  impossible." 

C.  R.  I.  &  P.  Railway  Company  vs.  Zernecke,  185  U.  S.  582,  586,  587. 

The  law  of  deodands,  from  the  Latin  Deo  dandum  (a  thing  to  be  given 
to  God),  was  a  rule  of  the  English  law  providing  that  any  personal  chattel 
which  was  the  immediate  occasion  of  the  death  of  any  creature,  should 
be  forfeited  to  the  Crown  to  be  applied  to  pious  uses  and  distributed  in 
alms  by  the  High  Almoner.  1  Hale,  P.  C.  419. 

Also,  in  St.  Louis,  etc.,  Railroad  Company  vs.  Matthews,  the  Federal 
Supreme  Court  says: 

"We  consider  this  to  be  a  statute  purely  remedial  and  not  penal.  Rail- 
road companies  acquire  large  profits  by  their  business,  but  their  business 
is  of  such  a  nature  as  necessarily  to  expose  the  property  of  others  to  danger. 
And  yet  on  account  of  their  great  accommodation  and  advantage  to  the  pub- 
lic, companies  are  authorized  by  law  to  maintain  them,  dangerous  though 
they  are,  and  so  they  cannot  be  regarded  as  a  nuisance.  The  manifest 
intent  and  design  of  this  statute,  we  think,  as  a  legal  effect,  are  to  afford 
some  indemnity  against  such  risk  to  those  who  are  exposed  to  it  and  to 
throw  responsibility  on  those  who  are  thus  authorized  to  use  a  somewhat 
dangerous  apparatus  and  who  realize  a  profit  from  it." 

St.  Louis,  etc.,  Railroad  Company  vs.  Matthews,  165  U.  S.  1. 

See  also  Missouri  Ry.  Co.  vs.  Mackey,  127  U.  S.  205. 

The  Illinois  Legislature  many  years  ago  (1874)  provided  that  it  should 
not  be  lawful  for  any  common  carrier  to  limit  in  any  way  his  common 
law  liability  safely  to  deliver  property  received  for  carriage  by  any  sort 
of  stipulation  or  agreement,  and  the  same  provision  was  specifically  made 
to  cover  railroads  by  the  General  Railroad  Incorporation  Act  of  1891. 

Kurd's  Rev.  Stat.  1908,  chap.  27,  p.  485 ;  chap.  114,  p.  1679. 

It  would  not  seem  unreasonable  to  expect  the  State  to  exhibit  the 
same  anxiety  for  the  safety  of  employes  engaged  in  hazardous  trades,  and 
to  extend  to  them  the  protection  of  the  same  rule  of  responsibility  now 
imposed  for  the  protection  of  the  persons  and  property  transported  by 
railroad  companies,  especially  when  we  remember  that  the  common  law 
rules  of  liability  generally  represented  an  attempt  to  establish  principles 
which  would  secure  justice  under  the  conditions  which  existed  at  the 
time  of  their  adoption,  which  conditions,  we  all  agree,  have  radically 
changed. 

It  may  be  argued  that  the  analogy  is  not  perfect,  and  that  the  employe 
occupies  an  entirely  different  position  from  that  of  the  passenger  or  shipper, 
for  the  reason  that  he  is  not  bound  to  accept  the  employment  and  incur 


62  EMPLOYERS'  LIABILITY^COMMISSION 

the  incidental  hazards  thereof  unless  he  sees  fit  to  do  so,  but  a  more 
thoughtful  consideration  of  the  real  relations  existing  between  the  employer 
and  the  employe  in  modern  industry,  suggests  that  the  employer  and  the 
employe  do  not  stand  upon  a  plane  of  equality  at  the  time  of  entering 
into  the  contract  of  hiring.  The  courts  are  beginning  to  recognize  this 
actual  inequality,  and  there  would  seem  to  be  no  good  reason  why  it  should 
not  be  recognized  and  considered. 

The  Supreme  Court  of  the  United  States,  in  Holden  vs.  Hardy,  in  sus- 
taining a  statute  of  the  State  of  Utah  providing  for  an  eight-hour  day 
for  workmen  in  underground  mines,  in  referring  to  this  inequality  between 
employer  and  employe,  says : 

"The  Legislature  has  also  recognized  the  fact,  which  the  experience 
of  Legislators  in  many  States  has  corroborated,  that  the  proprietors  of  these 
establishments  and  their  operatives  do  not  stand  upon  an  equality,  and  that 
their  interests  are,  to  a  certain  extent,  conflicting.  The  former  naturally 
desire  to  obtain  as  much  labor  as  possible  from  their  employes,  while 
the  latter  are  often  induced  by  the  fear  of  discharge  to  conform  to  regula- 
tions which  their  judgment,  fairly  exercised,  would  pronounce  to  be  detri- 
mental to  their  health  or  strength.  In  other  words,  the  proprietors  lay  down 
the  rules  and  the  laborers  are  practically  constrained  to  obey  them.  In 
such  cases  self-interest  is  often  an  unsafe  guide,  and  the  Legislature  may 
properly  interpose  its  authority."  (p.  397.) 

Harbison  vs.  Knoxville  Iron  Co.,  183  U.  S.  13 ;  S.  C.  53  S.  W.  955. 

Mr.  Tiedeman  discusses  this  matter  of  inequality  as  follows : 

"If  the  legal  equality  which  is  often  declared  to  exist  between  employer 
and  employe  was  a  reality  instead  of  a  legal  fiction,  the  laborer  would  not 
seek  legislative  interference  in  his  contractural  relations  with  the  employer 
more  actively  than  does  the  employer.  For  since  the  employer  and  the 
employe  are  equally  guaranteed  the  liberty  of  making  common  law  con- 
tracts under  certain  proper  restrictions,  each  is  free  to  make  whatever 
contracts  he  sees  fit,  subject  only  to  such  reasonable  restrictions  as  are 
imposed  for  the  public  good.  If  such  legal  equality  were  a  reality,  the 
laborer  would  felicitate  himself  upon  his  constitutional  right  to  accept 
or  reject  the  terms  of  employment  which  were  proposed  to  him.  But  as 
a  matter  of  fact,  there  can  be  no  substantial  equality  between  the  man  who 
has  not  wherewith  to  provide  himself  with  food  and  shelter  for  the  current 
day,  and  one,  whether  you  call  him  capitalist  or  employer,  who  is  able  to 
put  the  former  into  a  position  to  earn  his  food  and  shelter.  The  employer 
occupies  a  vantage  ground  which  enables  him  in  a  majority  of  cases  to 
practically  dictate  the  terms  of  employment." 

1  Tiedeman  on  State  and  Federal  Control  of  Persons  and  Property, 
pp.  315-326. 

The  Supreme  Court  of  Kansas  in  a  recent  case  characterizes  this  doctrine 
of  equality  in  the  following  vigorous  language:  "The  liberty  of  the  wage 
earner  to  contract  for  extra  pay  for  extra  hazard  and  to  seek  some  other 
employment  if  he  does  not  like  his  master's  methods,  is  a  myth,  or,  as  has 
been  said,  'a  heartless  mockery.' "  Caspar  vs.  Lewin,  109  So.  Rep.  667. 

It  will  therefore  be  seen  that  the  courts  have  construed  this  sort  of 
legislation  (viz. :  limiting  the  hours  of  labor  of  employes,  providing  that 


EMPLOYERS'  LIABILITYJX)MMISSION  63 

the  employe  be  paid  in  cash  instead  of  the  employers'  store  orders,  etc.), 
as  an  effort  on  the  part  of  the  Legislature  to  realize  a  new  ideal  of  social 
justice,  consisting  of  the  neutralization  of  the  natural  inequalities  exist- 
ing today  between  employer  and  employe,  by  the  governmental  power  of 
the  State. 

See  Holden  vs.  Hardy,  169  U.  S.  366. 

Dayton  Iron  Co.  vs.  Barton,  183  U.  S.  23. 

A.  T.  &  S.  F.  R.  R.  Co.  vs.  Matthews,  174  U.  S.  96. 

Muller  vs.  Oregon,  208  U.  S.  412. 

St.  Louis,  etc.,  R.  Co.  vs.  Paul,  173,  U.  S.  404. 

It  is  of  course  true  that  a  large  part  of  the  legislation  of  this  char- 
acter has  been  directed  against  transportation  companies,  and  there  are 
undoubtedly  more  legitimate  reasons  for  extensive  State  regulation  of  a 
business  which  is  generally  acknowledged  to  be  extra  hazardous,  than  for 
regulating  some  of  the  less  dangerous  industries,  but  legislation  of  this 
sort  has  not  stopped  with  railroad  companies  alone,  but  has  been  extended 
to  corporations  generally.  The  co-employe  act  of  the  State  of  Colorado 
abrogates  the  fellow  servant  rule,  and  practically  makes  the  master  liable 
in  damages  to  his  servant  for  every  injury  which  he  may  sustain  in  the 
course  of  his  employment,  except  where  the  servant  is  contributorily  neg- 
ligent. The  Supreme  Court  of  Colorado,  in  sustaining  this  act,  says: 

"For  the  purpose  of  providing  for  the  safety  and  protection  of  employes 
in  the  service  of  a  common  employer,  the  law-making  power  has  the  undoubted 
authority  to  abrogate  the  exception  to  the  general  rule  of  respondent  superior 
in  favor  of  the  employer,  and  make  him  liable  to  one  of  his  employes 
for  damages  caused  by  the  negligence  of  another  employe  while  acting 
within  the  scope  of  his  employment,  regardless  of  the  fact  that  such  employes 
are  fellow  servants.  Dryburg  vs.  Merker  G.  M.  &  M.  Co.,  55  Pac.  (Utah) 
367 ;  Mo.  Pac.  Ry.  Co.  vs.  Mackey,  127  U.  S.  205." 

V.  C.  G.  M.  vs.  Firstbrook,  36  Colo.  498,  512. 

The  exercise  of  this  inherent  power  of  sovereignty  is  frequently  illus- 
trated in  the  acts  of  the  public  authorities  in  preventing  great  disaster  or 
in  averting  great  public  inconvenience  or  injury. 

No  property  is  more  sacred  than  one's  home,  and  yet  a  person's  private 
residence  may  be  pulled  down  or  blown  up  by  the  public  authorities  if 
necessary  to  avert  or  stay  a  general  conflagration,  and  this,  too,  without 
any  recourse  against  such  authorities  for  the  trespass. 

Bowditch  vs.  Boston,  101  U.  S.  16. 

Sentell  vs.  New  Orleans,  etc.,  166  U.  S.  698. 

Other  instances  of  the  kind  are  found  in  the  power  to  kill  diseased  cattle, 
to  destroy  infected  goods  or  obscene  books  or  pictures  or  gambling  instru- 
ments (Gilman  vs.  Philadelphia,  3  Wall.  713,  730),  and  in  Lawton  vs.  Steele, 
152  U.  S.  133,  it  was  held  to  be  within  the  police  power  of  a  State  to  order  the 
summary  destruction  of  fishing  nets,  the  use  of  which  was  likely  to  result 
in  the  extinction  of  valuable  fisheries  within  the  waters  of  the  State. 

The  Federal  Supreme  Court  has  said  that: 

"The  settled  rule  of  this  court  is  that  the  mere  fact  of  pecuniary  injury 
does  not  warrant  the  overthrow  of  legislation  of  a  police  character." 

L'Hote  vs.  New  Orleans,  177  U.  S.  587. 


64    .  EMPLOYERS'  LIABILITY  .COMMISSION 

While  the  industries  conducted  in  the  State  of  Illinois  in  which  men 
are  frequently  maimed  and  killed  in  the  course  of  their  employment,  are 
not,  of  course,  properly  classed  as  nuisances,  it  is  perhaps  true  that  a 
great  many  of  them  would  be  so  considered,  except  for  the  public  neces- 
sity and  general  good,"  which  are  their  justification.  Were  it  not  for 
these  elements  of  public  necessity  and  general  welfare,  many  of  the  extra 
hazardous  industries,  as  now  conducted,  might  be  summarily  suppressed 
by  the  State  in  the  interest  of  public  safety.  In  the  language  of  Judge 
Cooley : 

"Many  things  are  nuisances  because  they  threaten  calamity  to  the  per- 
sons or  property  of  others,  and  thereby  cause  injury  though  the  calamity 
feared  may  never  befall." 

Cooley  on  Torts  (1888)  pp.  722,  724. 

The  police  power  is  as  broad  and  plenary  as  the  taxing  power  (Coe 
vs.  Errol,  116  U.  S.  517),  and  property  within  the  State  is  subject  to 
the  operation  of  the  former  so  long  as  it  is  within  the  regulating  restric- 
oins  of  the  latter  (Kidd  vs.  Peirson,  28  U.  S.  1).  And  public  charity, 
such  as  aid  to  the  unfortunate  classes,  and  matters  of  public  health,  have 
been  held  to  constitute  a  public  purpose  authorizing  taxation. 

Booth  vs.  Woodbury,  32  Conn.  118. 

St  Mary's  vs.  Brown,  45  Md.  310. 

Solomon  vs.  Tarver,  52  Ga.  405. 

Anderson  vs.  Kerns,  14  Ind.  199. 

It  would  seem  that  by  analogy  to  this  power  of  taxation  the  State 
might  properly  impose  a  burden  upon  a  hazardous  industry  to  be  borne 
in  the  first  instance  by  the  owner  thereof,  and  shifted  by  him  to  the  con- 
sumer in  the  form  of  an  increased  price  for  the  product,  when  the  imme- 
diate persons  engaged  in  carrying  on  such  industry  and  their  dependents 
are  oftimes  reduced  to  a  state  of  pauperism,  and  thus  made  objects  of 
public  charity  under  the  present  system  of  compensation  for  industrial 
accidents. 

Finally,  to  quote  from  Professor  Freund  In  his  work  on  the  Police  Power : 

"The  principle  that  inevitable  loss  should  be  borne,  not  by  the  person  on 
whom  it  may  happen  to  fall,  but  by  the  person  who  profits  by  the  dangerous 
business  to  which  the  loss  is  incident,  embodies  a  very  intelligible  idea  of 
Justice.  *  *  *  The  system  being  responsible  for  the  loss,  why  should  it  not 
be  constitutional  to  distribute  the  loss  among  the  beneficiaries  of  the  system? 
*  *  *  In  a  large  sense  the  community  is  certainly  interested  in  averting 
sudden  and  unexpected  losses  as  well  as  the  destitution  following  from  sickness 
and  disease,  and  the  distribution  of  these  losses  over  a  large  number  through 
insurance  is  a  legitimate  end  of  governmental  policy.  There  is  no  warrant 
for  denying  the  State  the  power  to  adopt  compulsory  measures  for  the 
purpose." 

Freund  on  Police  Power,  Sec.  435,  437. 

II. — TRIAL  BY  JUBY. 

Undoubtedly  the  gravest  constitutional  difficulty  in  the  way  of  adopting 
a  compulsory  compensation  law  are  provisions  of  our  constitution,  Federal 
and  State,  preserving  to  all  men  the  right  of  trial  by  jury. 


EMPLOYERS'  LIABILITY  COMMISSION 


The  Seventh  Amendment  to  the  Constitution  of  the  United  States 
provides : 

"In  suits  at  common  law  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved." 

Article  II,  of  the  Illinois  Constitution,  provides: 

"Sec.  5.  The  right  of  trial  by  jury  as  heretofore  enjoyed,  shall  remain 
inviolate."  *  *  * 

"Sec.  13.  Private  property  shall  not  be  taken  or  damaged  for  the  public 
use  without  just  compensation.  Such  compensation,  when  not  made  by  the 
State,  shall  be  ascertained  by  a  jury  as  prescribed  by  law." 

It  will  be  readily  seen  that  were  it  not  for  the  reservation  of  this  right 
of  a  jury  trial,  all  other  objections  relating  to  due  process  of  law,  etc., 
would  vanish  away,  because  the  legislature,  in  providing  a  new  statutory 
remedy  for  an  existing  condition,  might  also  provide  a  statutory  proceeding, 
sufficient  in  itself,  for  enforcing  the  liabilities  and  securing  the  benefits  of  such 
a  statute.  And  while  the  constitutional  provisions  quoted  supra,  were  not 
intended  to  and  did  not  confer  any  new  right  of  trial  by  jury,  but  merely 
preserved  the  right  as  it  existed  at  the  time  of  the  adoption  of  the  Consti- 
tution (Whitehurst  vs.  Coleen,  53  111.  247),  yet  all  actions  for  damages  for 
wrongs  to  person  or  property,  were  triable  by  jury  at  common  law,  and  were 
and  are  within  the  application  of  the  constitutional  provisions  above  quoted. 

24  Cyc.  108. 

It  has  been  contended  that  a  compensation  law,  being  in  the  nature  of 
a  new  statutory  remedy,  would  not  properly  be  subject  to  the  objection  that 
it  deprived  any  person  of  the  right  of  trial  by  jury,  if  such  law  included 
within  its  terms  a  sufficient  and  adequate  statutory  method  of  enforcing 
the  provisions,  either  by  arbitration  or  a  trial  by  the  court  without  the 
intervention  of  a  jury.  As  stated  by  Judge  Brannon:  "It  (the  Fourteenth 
Amendment)  does  not  prohibit  a  state  from  future  new  legislation,  action 
or  proceedings  necessary  in  its  judgment  in  the  administration  of  its  govern- 
ment, so  long  as  it  bears  alike  on  all  similarly  circumstanced  and  be  not 
unusual,  oppressive  or  arbitrary  action  assailing  the  essential  rights  of  the 
person." 

Brannon  on  Fourteenth  Amendment,  Page  143,  144. 

(See  also,  as  bearing  indirectly  upon  this  proposition: 

Martin  vs.  Pittsburg,  etc.  Co.,  203  U.  S.  284.) 

I  am  of  the  opinion,  however,  that  inasmuch  as  this  right  of  action 
for  personal  wrongs  was  a  common  law  right  and  triable  by  jury  at  the 
time  of  the  adoption  of  the  Constitution,  it  is  within  the  application  of  the 
constitutional  provision,  and  that  a  general  compensation  law  would  as 
effectually  take  away  that  constitutional  right,  as  would  a  direct  statute 
expressly  abrogating  the  right  of  trial  by  jury  in  tort  cases  between  master 
and  servant. 

The  general  terms  "due  process  of  law,"  which  the  constitutions  do  not 
even  attempt  to  define,  are  susceptible  of  a  good  deal  of  extension  and  enlarge- 
ment by  construction,  and  can  be  interpreted  in  such  a  manner  as  to  embrace 
all  reasonable  police  regulations  which  changing  conditions  seem  to  warrant— 
but  the  right  of  "trial  by  jury"  can  mean  but  one  thing,  and  the  constitutional 


66  EMPLOYERS'  LIABILITY  COMMISSION 

provision  preserving  it  is  singularly  inelastic,  and  it  has  practically  the  same 
scope  today  that  it  had  when  the  constitution  was  adopted. 

(a)     Some  limitations  on  the  right  of  trial  ~by  jury. 

At  the  outset  it  may  be  noted  that  the  right  of  trial  by  jury  was  not 
guaranteed  in  express  terms  by  Magna  Charta,  but  the  provision  that  no  free- 
man should  be  hurt  in  either  his  person  or  property,  unless  by  the  lawful 
judgment  of  his  peers,  or  by  the  law  of  the  land,  was  so  construed. 

Profatt  Jury  Tr.  Sec.  24. 

Of  course,  after  the  controversy  arises,  the  parties  to  the  suit  may  waive 
their  right  to  a  jury  and  submit  the  questions  in  controversy  to  the  decision 
of  the  court,  in  which  case,  the  court  obtains  its  power  to  try  the  issues  of 
fact  wholly  from  the  agreement  of  the  parties. 

Travers  v.  Wormer,  13  111.  App.  39. 

Indeed,  our  statute  provides  that  "In  all  cases  in  any  court  or  record  in 
this  State,  if  both  parties  shall  agree,  both  matters  of  law  and  fact  may  be 
tried  by  the  court." 

Kurd's  Rev.  Stat.  1908,  Page  1628,  Sec.  60. 

It  has  been  held  that  the  provisions  of  the  Federal  Constitution  apply 
only  to  the  Federal  Courts,  and  that  the  States  may,  if  they  chose,  provide 
for  the  trial  of  civil  cases  in  the  State  Courts  without  the  intervention  of  a 
jury,  provided,  of  course,  that  tney  shall  not  transcend  the  express  limitations 
which  they  have  placed  upon  themselves  in  their  respective  State  Constitutions. 

Cooley's  Con.  Lim.  6th  Ed.  Page  29,  30. 

Keith  v.  Henkleman,  173  111.  137. 

Spies  v.  Illinois,  123  U.  S.  131. 

24  Cyc.  103. 

The  right  of  the  jury  trial  in  the  State  Court  is  not  a  privilege  or 
immunity  of  national  citizenship  which  the  Fourteenth  Amendment  prohibits 
the  State  from  abridging ;  it  only  defends  such  privileges  or  immunities  as  arise 
from  and  are  incident  to  national  citizenship  as  such. 

Brannon  on  Fourteenth  Amendment,  Page  82. 

The  control  of  questions  relating  to  public  health  was  ordinarily,  before 
the  adoption  of  the  Constitution,  vested  in  boards  or  officers  who  were  author- 
ized to  proceed  in  a  summary  manner  without  the  intervention  of  a  jury,  and 
such  cases,  therefore,  not  coming  within  the  application  of  the  constitutional 
provision,  do  not  now  call  for  or  require  a  jury  trial. 

24  Cyc.  130. 

Metropolitan  Bd.  of  Health  vs.  Heister,  37  N.  Y.  661. 

We  have  also  seen  that  the  State  and  its  agencies  may  take  or  injure 
the  property  of  a  person  in  times  of  great  necessity  or  danger  in  a  summary 
manner  without  any  due  process  of  law  or  trial  of  any  kind,  and  without 
compensation  to  the  person  injured,  when  the  general  safety  or  welfare  of 
the  people  requires  it. 

The  Constitution  of  the  State  of  California  authorizes  prosecutions  for  fel- 
onies by  information  without  indictment  by  a  grand  jury  in  the  discretion 
of  the  legislature.  The  penal  code  of  the  State  following  this  constitutional 
authority  makes  provision  for  the  prosecution  of  felonies  by  information  and 
dispenses  with  the  indictment  by  a  grand  jury.  In  sustaining  this  legislation 


EMPLOYERS'  LIABILITY  COMMISSION  67 

under  the  California  Constitution,  the  Supreme  Court  of  the  United  States 
said: 

"Any  legal  procedure,  enforced  by  public  authority,  whether  sanctioned 
by  age  and  custom  or  newly  devised  in  the  discretion  of  the  legislature  in 
furtherance  of  the  general  public  good,  must  be  held  to  be  due  process  of  law." 

Hurtado  vs.  California,  110  TJ.  S.  537. 

See  also  In  re  Debs,  158  U.  S.  564. 

We  have  also  seen  that  pauper  acts,  imposing  a  liability  for  the  support 
of  indigent  relatives,  when  there  was  no  common-law  duty  of  support,  are 
held  to  be  legal,  and  not  an  infringement  of  any  constitutional  right.  In 
addition  to  the  quotation  made  supra  from  People  vs.  Hill,  163  111.  186,  the 
Court  said,  with  reference  to  the  right  of  trial  by  jury : 

"The  legal  liability  imposed  is  statutory,  and  the  statute  fixes  the  proced- 
ure by  means  of  which  the  liability  is  to  be  enforced.  *  *  *  This  procedure 
may  not  be  in  strict  conformity  with  that  provided  by  the  English  statute  or 
that  provided  in  some  other  states,  but  it  is  not  necessarily  invalid  on  that 
account.  It  is  a  statutory  liability,  and  there  is  no  reason  why  the  procedure 
for  its  enforcement  cannot  be  provided  for  in  the  statute  fixing  the  liability. 
We  are  unable  to  see  that  the  method  of  procedure  adopted  violates  any  consti- 
tutional right  of  appellee.  It  is  suggested  that  it  deprives  him  of  the  right 
of  trial  by  jury.  It  is  only  the  right  of  trial  by  jury  'as  heretofore  enjoyed' 
that  Section  5  of  Article  2  of  the  Constitution  provides  'shall  remain  invio- 
late.' This  section  was  not  intended  to  confer  the  right  of  jury  trial  in  any 
class  of  cases  where  «it  had  not  previously  existed,  nor  was  it  intended  to 
introduce  it  into  special  summary  jurisdictions  unknown  to  the  common-law 
and  which  do  not  provide  for  that  mode  of  trial.  Ward  vs.  Farwell,  97  111. 
593;  Cooley's  Const.  Lira.  (6th  Ed.)  504,  and  authorities  cited  in  note  2." 

People  vs.  Hill,  163  111.  186,  192,  193. 

In  my  judgment,  this  legislation  presents  the  farthest  extreme  to  which 
the  State  of  Illinois  has  gone  in  limiting  the  right  of  trial  by  jury,  and  it 
finds  its  only  justification  in  the  statement  by  the  Court  that  the  legislature 
may,  in  the  exercise  of  the  police  power,  change  what  is  a  moral  duty  into  a 
legal  liability,  thus  lessening  a  public  burden. 

There  are  a  great  many  other  cases  in  which  the  right  of  trial  by  jury 
has  either  been  limited  or  entirely  denied,  such  as  confessing  of  a  judgment, 
entering  into  a  recognizance,  giving  a  mortgage,  which,  when  recorded,  may 
be  enforced  by  scire  facias,  the  imposition  of  taxes  or  assessments,  the  fixing 
of  the  amount  of  liability  under  a  cost  bond,  cases  in  chancery,  etc.  It  is  also 
the  usual  practice,  in  most  of  the  states,  to  assess  damages  for  the  taking  of 
a  right  of  way,  without  the  intervention  of  a  jury,  and  the  Supreme  Court  of 
Pennsylvania  has  held  a  law  constitutional  which  provided  for  assessing 
damages  in  the  case  of  property  destroyed  by  mobs,  by  an  inquest  of  six  men 
on  inspection  out  of  court.  The  decision  is  based  on  the  ground  that  the  consti- 
tutional guaranty  of  the  right  of  trial  by  jury  applies  to  the  trial  of  issues  in 
court,  and  not  to  an  assessment  of  damages  out  of  court. 

Ross  vs.  Irving,  14  111.  170,  181. 

In  the  matter  of  the  Pennsylvania  Hall,  5  Barr.  204. 

In  my  judgment,  there  would  be  nothing  inconsistent  with  any  theory  of 
natural  justice  in  taking  away  the  right  of  trial  by  jury,  so  far  as  the  servant 


68  EMPLOYERS'  LIABILITY  COMMISSION 

is  concerned,  in  cases  where  the  injury  occurs  through  the  negligence  of  an 
agent  or  employe  of  the  master,  believed  reasonably  and  in  good  faith  by  the 
master  to  have  been  competent  at  the  time  of  hiring.  In  other  words,  the 
doctrine  of  respondeat  superior  in  cases  of  tort  by  an  agent  or  servant  of 
the  master,  might  be  abrogated  and  the  doctrine  of  compulsory  compensation 
substituted  by  legislative  enactment  in  such  cases. 

In  all  cases  where  the  injury  results  from  the  direct  negligence  or  inten- 
tional act  of  the  master,  the  servant  would  seem  to  have  a  clear  right  to 
his  common  law  remedies  against  him,  including  the  trial  by  jury.  The 
extension  of  the  liability  of  the  master,  however,  to  cover  the  negligent  acts 
of  a  servant  or  agent,  is  a  comparatively  recent,  judge-made  privilege  given 
to  the  employe,  and  what  has  thus  been  given  him,  might  in  reason  be  taken 
away,  in  the  exercise  of  the  reasonable  police  power  of  the  state. 

Even  this  opinion,  however,  is  clouded  by  the  consciousness  that  the 
doctrine  of  respondeat  superior,  and  the  employe's  rights  thereunder  existed 
at  the  time  of  the  adoption  of  the  constitutional  provision,  and  might  there- 
fore be  held  to  be  within  its  application. 

(b)     Arbitration. 

It  is  obvious  that  one  of  the  main  purposes  of  an  automatic  compensation 
law  is  to  avoid,  so  far  as  possible,  the  delay  and  expense  incident  to  the  ordi- 
nary court  proceedings  for  the  recovery  of  damages  for  personal  injuries.  It 
would  therefore  seem  wise  to  include  in  any  compensation  scheme  a  provision 
for  the  arbitration  of  any  differences  which  might  arise  between  employer  and 
employe,  if  a  feasible  plan  therefor  could  be  devised. 

In  considering  the  applicability  of  the  principles  of  arbitration  to  a  com- 
pulsory compensation  plan  it  should  be  observed  that  the  arbitration  method 
of  settling  disputed  points  may  be  provided : 

1.  By  agreement  of  the  parties ;  and 

2.  By  legislative  enactment. 

It  would  undoubtedly  be  quite  proper  for  the  legislature  to  provide  that 
the  parties  interested  in  any  claim  for  compensation  might  voluntarily  agree 
to  arbitrate  any  differences  which  might  arise  between  them. 

As  a  general  rule,  agreements  to  refer  disputes  to  arbitration  present  an 
example  of  what  the  common  law  regarded  as  attempts  to  oust  the  jurisdic- 
tion of  the  courts  and  therefore  against  public  policy.  The  reason  for  the  rule 
adopted  by  the  courts  is  by  some  traced  to  the  jealousy  of  the  courts  and  to  a 
desire  to  repress  all  attempts  to  encroach  on  the  exclusiveness  of  their  juris- 
diction; and  by  others  to  an  aversion  of  the  courts,  from  reasons  of  public- 
policy,  to  sanction  contracts  by  which  the  protection  which  the  law  affords 
the  individual  citizen  is  removed.  But  whatever  may  be  the  reason,  it  is  a 
well-established  rule  of  the  common  law  that  a  clause  in  an  agreement  or 
a  separate  agreement  that  any  or  all  disputes  which  may  arise  thereunder 
shall  be  referred  to  an  arbitrator  or  arbitrators  is  unenforcible,  as  an 
attempt  to  oust  the  courts  of  jurisdiction,  and  either  party  may  have  recourse 
to  the  courts  without  carrying  out  his  agreement  to  refer.  There  is  n 
strong  tendency  in  modern  times  to  relax  the  common  law  rule,  and  i?< 
some  States  the  settlement  of  disputes  by  arbitration  is  permitted  1  y  st.i!uu> 
Such  a  statute  is  in  force  in  the  State  of  IlliuQis.  (Kurd's  Rev.  ;-•;:;:.  i: :  , 
chap.  10.) 


EMPLOYERS'  LIABILITY  COMMISSION  69 

There  is  also  a  qualification  made  in  the  modern  decisions,  following 
an  English  case,  which  is  this:  that  it  is  not  illegal  for  parties  to  agree 
to  arbitration  as  a  condition  precedent  to  suit,  with  respect  to  the  mode 
of  settling  the  amount  of  damages  or  the  time  of  paying  it  or  any  matters 
of  that  kind,  that  do  not  go  to  the  root  of  the  action,  and  that  if  an 
agreement  does  not  deprive  a  person  absolutely  of  his  right  to  sue,  but 
only  renders  it  a  condition  precedent  that  the  amount  to  be  recovered  shall 
first  be  ascertained  by  a  committee  of  arbitrators,  such  an  agreement  is 
held  not  to  be  an  attempt  to  oust  the  courts  of  their  jurisdiction. 

9  Cyc.  511-513. 

Niagara  Fire  Ins.  Co.  vs.  Bishop,  154  111.  1. 

Where  the  Legislature,  however,  expressly  authorizes  the  submission 
of  disputes  to  arbitration  by  the  agreement  of  the  parties,  a  reference 
thereof  would  probably  not  be  held  to  be  an  attempt  to  oust  the  courts  of 
their  jurisdiction.  An  agreement,  pursuant  to  legislative  authority,  would 
be  viewed  differently  by  the  courts  than  the  voluntary  individual  action  of 
the  parties. 

The  right  of  the  Legislature  to  compel  a  reference  to  arbitrators,  of 
questions  in  dispute  between  master  and  servant  is  a  question  of  more 
serious  difficulty.  The  constitution  extends  the  right  of  trial  by  jury  "to 
all  cases  at  law."  There  can  be  no  pretense  that  a  claim  for  damages 
for  accidental  injury  is  not  a  case  at  law  in  the  constitutional  sense,  and 
it  is  therefore  beyond  the  power  of  the  Legislature,  in  my  judgment,  to 
compel  either  the  employer  or  the  employe  to  forego  his  right  to  a  jur.y 
trial  in  such  cases. 

Bullock  vs.  Geomble,  45  111.  218,  22. 

State  vs.  Devine,  98  N.  C.  778. 

St.  L.  I.  M.  &  S.  Ry.  vs.  Williams,  49  Ark.  492. 

Indeed,  the  clear  weight  of  authority  seems  to  be  that  a  compulsory 
reference,  unless  authorized  prior  to  the  adoption  of  the  constitution,  of 
a  purely  legal  cause  of  action,  against  the  consent  of  the  parties,  is  an 
infringement  of  the  right  of  trial  by  jury. 

24  Cyc.  178,  179. 

A  compulsory  reference,  however,  in  the  first  instance,  with  the  right 
reserved  to  either  party  to  demand  a  jury  in  case  he  is  dissatisfied  with 
the  report  or  award,  is  not  an  infringement  of  the  constitutional  right. 

24  Cyc.  179. 

Copp  vs.  Henniker,  55  N.  H.  179. 

Any  compulsory  compensation  law,  therefore,  in  order  to  be  safe,  should, 
in  my  judgment,  preserve  the  right  of  both  master  and  servant  to  a  trial 
by  jury,  whether  or  not  there  is  any  likelihood  of  either  availing  himself 
of  his  constitutional  privilege  in  that  respect,  because,  so  long  as  the  right 
exists,  either  party  might  be  tempted  to  avail  himself  of  the  opportunity 
of  having  the  statute  nullified  by  the  courts,  in  order  to  avoid  the  operation 
of  the  compensation  law. 

III.    CLASSIFICATION  OF  INDUSTRIES. 

Every  one  has  a  right  to  demand  that  he  be  governed  by  general  rules. 
and  a  special  statute  which,  without  his  consent,  singles  his  case  out  as 
one  to  be  regulated  by  a  different  law  from  that  which  is  applied  to  all 


TO  EMPLOYERS'  LIABILITY  COMMISSION 

other  similar  cases,  would  not  be  legitimate  legislation,   but   would  be  an 
arbitrary  mandate,  not  within  the  province  of  a  free  government. 

Those  who  make  the  laws  "are  to  govern  by  promulgated,  established 
laws,  not  to  be  varied  in  particular  cases,  but  to  have  one  rule  for  rich 
and  poor,  for  the  favorite  at  court  and  the  countryman  at  plough." 

Locke  on  Civil  Government,  sec.  142. 

Bernier  vs.  Russell,  89  111.  60. 

Strauder  vs.  West  Va.,  100  U.  S.  303. 

This  is  a  maxim  of  constitutional  law,  and  by  it  we  may  test  the 
authority  and  binding  force  of  legislative  enactments.  Doubts  frequently 
arise  as  to  whether  a  regulation,  made  for  any  one  class  of  citizens,  appar- 
ently somewhat  arbitrary  in  its  character,  and  restricting  their  rights  and 
privileges  in  a  manner  unknown  to  the  law,  can  be  sustained  notwithstanding 
their  generality.  Distinctions  in  these  respects  must  rest  upon  some  reason 
upon  which  they  can  be  defended. 

Cooley's  Const.  Lim.  (7th  Ed.),  559-561. 

The  constitution  of  the  State  of  Illinois  provides : 

"Article  IV,  Sec.  22.  The  General  Assembly  shall  not  pass  local  or 
special  laws  in  any  of  the  following  enumerated  cases,  that  is  to  say :  *  *  * 
Granting  to  any  corporation,  association  or  individual  any  special  or  exclu- 
sive privilege,  immunity  or  franchise  whatever. 

****** 

Regulating  the  practice  in  courts  of  justice. 


In   all   other   cases   where  a    general   law    can   be   made   applicable   no 
special  law  shall  be  enacted." 


"Article  II,  Sec.  19.  Every  person  ought  to  find  a  certain  remedy  in 
the  laws  for  all  injuries  and  wrongs  which  he  may  receive  in  his  person, 
property  or  reputation." 

The  Federal  constitution  provides,  in  the  Fourteenth  Amendment,  Sec- 
tion 1,  that : 

"No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States,  *  *  *  nor  deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of  the  laws." 

A  mandatory  statute,  made  expressly  applicable  to  all  employers  of 
labor,  might  be  held  unreasonable  by  the  courts,  for  manifestly  a  large  number 
of  the  small  industries  of  the  State  involve  no  particular  hazard  to  the  em- 
ploye, and  it  is  a  fundamental  principle  that  any  exercise  of  the  police  power 
of  the  State  must  be  reasonable,  in  view  of  the  conditions  which  the  legisla- 
tion affects. 

On  the  other  hand,  it  is  also  well  established  that  the  mere  declara- 
tion by  the  Legislature  that  certain  industries  are  hazardous,  does  not  make 
them  so  as  a  matter  of  law,  and  it  remains  for  the  court  to  determine 
whether  any  classification,  made  on  the  basis  of  the  hazards  of  the  trade, 
is  a  reasonable  one,  and  has  a  direct  relation  to  the  end  apparently  sought 
to  be  attained. 

Ritchie  vs.  People,  155  111.  98. 


EMPLOYERS'  LIABILITY  COMMISSION  71 

Without  going  into  an  extensive  review  of  the  authorities  on  the  sub- 
ject, suffice  it  to  say  that  any  classification,  made  on  the  basis  of  the  dangers 
incident  to  the  industries,  is  fraught  with  grave  peril,  in  view  of  the  decisions 
of  the  Supreme  Court  of  the  State  of  Illinois.  Any  discrimination  against 
one  class  of  workmen  and  in  favor  of  another  class  would  undoubtedly  be 
held  unconstitutional. 

Starne  vs.  People,  222  111.  189. 

In  this  case  the  Supreme  Court  held  that  the  Act  of  1903  (Laws  of 
1903,  p.  252),  requiring  mine  owners  to  provide  a  washroom  at  the  top  of 
each  mine,  for  the  use  of  employes,  places  upon  mine  owners  a  burden  not 
borne  by  other  employers  of  labor,  and  discriminates  in  favor  of  mining 
employes  against  laborers  engaged  in  other  occupations,  and  is  special  legis- 
lation, notwithstanding  the  fact  that  it  applied  generally  to  some  70,000 
miners  in  the  State  of  Illinois  and  operated  alike  upon  all  persons  included 
in  that  class. 

It  has  also  been  held  that  a  statute  applying  only  to  mines,  which  ship 
their  coal  by  rail  or  water,  requiring  the  weighing  of  all  coal  mined,  In 
determining  the  payment  therefor,  is,  on  account  of  such  classification,  uncon- 
stitutional. (Harding  vs.  People,  160  111.  459.)  It  is  also  held  that  a  regu- 
lation of  the  sale  of  goods  of  mining  and  manufacturing  corporations  alone, 
is»unconstitutional,  as  special  legislation.  (Frorer  vs.  People,  141  111.  171.) 

This  stringent  rule  in  regard  to  class  legislation  does  not  obtain  in  the 
State  of  New  York,  where  they  have  recently  adopted  a  limited  compulsory 
compensation  law,  applying  to  hazardous  trades  only,  but  it  will  be  readily 
seen  from  the  above  decisions,  that  it  would  be  exceedingly  dangerous  to 
attempt  any  classification  whatever  with  reference  to  a  change  in  the  common 
law,  so  radical  in  its  nature  as  any  compulsory  compensation  system  must 
necessarily  be. 

Our  Supreme  Court  and  the  Supreme  Court  of  the  United  States  have 
both  sustained  the  classification  adopted  in  the  statute  regulating  mines 
and  mining,  which  applies  to  coal  mines  "where  more  than  five  men  are 
employed  at  any  one  time."  This  is  a  species  of  classification  which  the 
Legislature  is  at  liberty  to  adopt,  provided  it  be  not  wholly  arbitrary  or 
unreasonable. 

St.  Louis  Cons.  Coal  Co.  vs.  Illinois,  185  U.  S.  203,  207 ;  S.  C.  186  111.  134. 

See  also: 

Lasher  vs.  People,  183  111.  226. 

And  it  would  seem  that  such  a  classification,  exempting  the  small  manu- 
facturer from  the  operation  of  the  law,  which  would  undoubtedly  be  burden- 
some to  him,  would  be  considered  reasonable,  in  view  of  the  precedents 
above  cited. 

THE  REMEDY. 

Viewed,  therefore,  as  a  matter  of  safe  and  practical  1/egislation,  I  would 
recommend  a  bill,  compulsory  in  form,  but  elective  in  fact,  and  with  a 
classification  either  embracing  all  industries  or  all  those  where  five  or  more 
persons  are  employed  at  any  one  time.  By  compulsory  in  form  and  elective 
in  fact,  I  mean  a  bill  providing  in  general  terms  for  the  payment  of  compen- 
sation for  all  industrial  accidents  upon  the  basis  of  the  scale  to  be  included 


72  EMPLOYERS'  LIABILITY  COMMISSION 

in  the  Act,  such  bill,  however,  to  contain  a  provision  reserving  to  both  em- 
ployer and  employe  their  rights  at  common  law,  with  the  proviso  as  to  the 
employer  that  if  he  pursues  his  common  law  remedies  his  common  law  de- 
fenses shall  be  limited  (the  limitations  to  be  fixed  by  the  Act),  and  with  the 
further  proviso  as  to  the  employe  that  he  shall  be  presumed  to  have  accepted 
the  compensation  plan  unless  he  expressly  contracts  to  the  contrary,  and  that 
any  acceptance  by  him  of  compensation  at  common  law  shall  bar  him  from 
all  benefits  to  the  compensation  provide'd  by  the  Act.  Or  it  might  be  made 
elective  in  form,  with  the  same  penalties  to  follow  an  election  not  to  pay  the 
compensation  provided. 

It  will  be  observed  that  this  plan  would  secure  to  both  parties  their 
constitutional  rights  of  due  process  of  law  and  trial  by  jury,  with  a  penalty 
added  for  the  purpose  of  inducing  them  to  forego  such  rights  and  accept 
the  statutory  compensation. 

I  am  of  the  opinion  that  this  plan  of  limitation  .upon  the  common  law 
rights  of  the  parties  may  be  properly  included  in  the  form  of  a  proviso 
in  the  compensation  act  without  violating  that  provision  of  the  constitution, 
which  provides  that  no  Act  shall  embody  more  than  one  subject,  which 
shall  be  expressed  in  its  title,  because  it  is  manifest  that  the  modification 
of  the  common  law  rights  of  the  parties  is  in  furtherance  of  the  general  pur- 
pose of  the  Act,  viz. :  to  provide  certain,  definite  and  automatic  compensa- 
tion for  industrial  accidents. 

Larned  vs.  Tiernan,  110  111.  173. 

It  will  be  equally  obvious  that  when  these  common  law  rights  are 
reserved  in  this  way,  the  other  constitutional  questions  in  regard  to  taking 
one's  property  without  due  process  of  the  law,  trial  by  jury,  unreasonable 
classification,  etc.,  are  practically  eliminated,  because  the  Act,  as  a  whole,  is, 
in  effect,  elective  and  does  not  rest  for  its  authority  upon  the  police  power 
of  the  State.  In  other  words,  if  the  reservation  of  the  common  law  rights 
were  not  made,  the  Act  could  find  its  justification  only  in  the  police  power 
of  the  State,  and  this  would  involve  the  necessity  of  demonstrating  that 
any  classification  made  was  reasonable,  and  that  although  the  property  of 
the  employer  might  in  effect  be  taken  away  from  him  to  compensate  the 
injured  employe,  there  existed  an  overruling  necessity  for  such  action,  justify- 
ing the  course  of  the  Legislature  in  imposing  this  burden  upon  him ;  whereas, 
under  a  bill  drawn  as  above  suggested,  no  objection  could  be  made  on  the 
ground  that  the  Act  was  not  due  process  of  law,  because  the  courts  would 
say  that  due  process  was  reserved  to  him  by  the  Act  itself,  and  no  vital 
objection  could  be  made  to  the  classification,  because  if  the  Act  is  in  effect 
elective,  those  persons  covered  by  its  provisions  would  have  the  right,  by 
their  own  volition,  to  place  themselves  in  the  same  class  with  those  who 
were  not  in  terms  covered  by  the  Act. 

CONCLUSION. 

I  personally  feel  that  perhaps  a  more  courageous  stand  should  be  taken 
with  reference  to  preparing  legislation  of  this  character,  and  that  more 
confidence  should  be  felt  in  the  desire  of  the  courts  to  co-operate  with  the 
other  co-ordinate  branch  of  the  government  in  securing  for  the  State  progres- 
sive legislation  of  this  kind.  The  subject  of  compulsory  compensation  for 


EMPLOYEES'  LIABILITY  COMMISSION  73 

industrial  accidents,  however,  is  a  new  one  in  this  country,  and  while  I 
thoroughly  believe  that  another  decade  will  find  everyone  agreed  upon  the 
proposition  that  any  State  may  adopt  such  a  law  without  exception  or 
qualification,  purely  as  a  police  measure,  at  the  same  time  I  also  feel  that 
in  view  of  the  lack  of  general  information  on  the  subject,  and  the  con- 
sequent immature  state  of  public  opinion,  it  would  be  unwise  as  a  question 
of  practical  legislation  to  attempt  at  this  time  to  enact  an  unqualified 
compulsory  compensation  law,  when  the  beneficial  results  which  must  follow 
from  the  operation  of  such  a  law  are  the  real  objective,  rather  than  the 
mere  establishment  of  the  principle  of  compensation  without  negligence  or 
fault 

That  the  law  should  read  into  every  contract  of  hiring,  a  limited 
guaranty  by  the  master  to  his  servant,  against  injury  to  life  or  limb  while 
the  servant  is  going  about  his  master's  business,  when  it  appears  that  the 
larger  proportion  of  such  injuries  in  almost  all  employments  are  entirely 
incidental  to  the  business,  does  not  seem  any  more  unreasonable  than  that 
the  law  should  conclusively  presume  that  the  servant,  upon  entering  the 
employment,  voluntarily  assumes  in  advance  all  the  necessary  and  inherent 
hazards  of  the  trade. 

While  such  a  proposition  might  seem  novel  and  not  in  accord  with  the 
purely  juristic  notion  of  the  State,  in  contrast  with  the  social  conception 
of  the  present,  this  fact  alone  should  not  be  conclusive  in  determining 
whether  it  is  sound  or  unsound.  As  Mr.  Justice  Holmes  of  the  Supreme 
Court  of  the  United  States  has  recently  said: 

"I  strongly  believe  that  my  agreement  or  disagreement  has  nothing  to 
do  with  the  right  of  a  majority  to  embody  their  opinion  in  law.  The 
Fourteenth  Amendment  does  not  enact  Mr.  Herbert  Spencer's  social  statics. 
A  constitution  is  not  intended  to  embody  a  particular  economic  theory, 
whether  of  paternalism  and  the  organic  relation  of  the  citizen  to  the  State, 
or  of  laissvz  faire.  It  is  made  for  people  of  fundamentally  differing  views, 
and  the  accident  of  our  finding  certain  opinions  natural  and  familiar,  or  novel 
and  even  shocking,  ought  not  to  conclude  our  judgment  upon  the  questions 
whether  statutes  embodying  them  conflict  with  the  constitution  of  the 
United  States." 

However,  it  is  a  practical  question  of  legislation  and  not  an  academic 
theory  with  which  we  are  dealing,  and  a  safe  and  conservative  course, 
which  avoids,  so  far  as  possible,  all  questions  of  constitutional  law,  would 
seem  to  be  wise. 

Respectfully  submitted, 

SAMUEL  A.  HABPEB, 
Attorney,  Employers'  Liability  Commission. 


THE    LEGAL   RECORD 

Some  Reasons  for  Dissatisfaction 
in   Our  Present  Legal  System 

(Read  right,  or  odd  numbered,  pages,  for  report;   left,  or  even  numbered,  pages  con- 
tain statistical  records.) 


nnnn 


As  bearing  upon  the  question  of  the  remedy  for  losses  sustained  through 
industrial  accidents,  and  the  relative  importance  of  this  question  under 
present  conditions  as  compared  with  the  conditions  existing  during  the 
early  history  of  the  State,  a  search  was  made  under  the  supervision  of  the 
attorney  for  the  Commission,  through  the  printed  reports  of  the  Illinois  Su- 
preme Court  in  order  to  ascertain  the  amount  of  litigation  growing  out  of 
such  accidents,  and  the  results  have  been  significant. 

In  the  first  14  volumes  of  the  Supreme  Court  Reports,  covering  a  period 
from  1818  to  1854,  only  one  tort  case  is  reported  in  which  the  relation  of 
master  and  servant  was  in  any  way  involved.  In  the  15th  Illinois  Supreme 
Court  Reports,  page  550,  is  reported  the  case  of  Honuer  vs.  Illinois  Central 
R.  R.  Co.  (1854),  which  decision  not  only  bears  the  distinction  of  being  the 
first  tort  case  in  our  Supreme  Court,  between  master  and  servant,  but  it  is 
also  the  first  and  leading  case  in  this  State  adopting  the  now  familiar  fellow- 
servant  doctrine. 

It  is  also  interesting  to  note  that  in  the  first  55  years  of  the  history  of 
our  Supreme  Court  only  25  of  these  cases  were  decided  by  that  Court, 
whereas  in  the  last  bound  volume  of  our  Supreme  Court  Reports,  being  No. 
243,  there  are  13  such  cases.  This  report  covers  only  parts  of  two  terms  of  the 
Court,  viz. :  December,  1909,  and  February,  1910,  or  not  to  exceed  three  months 
of  the  time  of  the  Supreme  Court. 

An  investigation  was  also  made  into  the  records  of  the  Illinois  Supreme 
and  Appellate  Courts,  the  Superior  and  Circuit  Courts  of  Cook  County  and 
the  Municipal  Court  of  Chicago  under  the  supervision  of  the  attorney  for 
the  Commission.  The  general  tables  showing  the  results  of  such  investigation 
appear  on  alternate  pages,  beginning  page  76.  These  cases  were  all  taken  in 
chronological  order  from  the  records  of  the  various  courts  and  the  results 
should  therefore  represent  the  average  experience  in  cases  of  this  kind  in  the 
courts  covered  by  the  investigation. 

AVERAGE  AMOUNTS  RECOVERED. 

In  the  last  eleven  death  cases  decided  in  the  Supreme  Court  prior  to 
February,  3910,  the  average  recovery  as  shown  from  the  tables  was 
$4,091.00.  In  the  last  14  non-fatal  cases  the  average  recovery  was  $5,728.00. 
In  the  Appellate  Court  (a  Court  of  limited  appellate  jurisdiction)  the  last 
ei.^ht  death  cases  reported  prior  to  March.  11)10,  show  an  average  recovery  <>f 


EMPLOYERS'  LIABILITY  COMMISSION 


75 


$1,436.00  and  the  last  18  non-fatal  cases  show  an  average  recovery  of  $585.00. 
These  figures  are  not  .influenced  by  the  limited  jurisdiction  of  the  Court, 
because  appeals  may  be  taken  under  our  court  practice  from  the  Superior 
and  Circuit  Courts  of  Cook  County  and  the  Municipal  Court  of  Chicago 
from  a  judgment  of  'any  size  to  the  Appellate  Court,  the  limitation  being 
imposed  only  on  appeals  from  the  Appellate  to  the  Supreme  Court. 

Forty  cases  disposed  of  in  the  Superior  Court  of  Cook  County  from 
January  1st,  1907,  to  January  1st,  1908,  disclose  the  following  amounts 
recovered : 

Seven  cases  of  death  show  an  average  of  $1,313.00. 

Twenty-three  non-fatal  cases  show  an  average  judgment  of  $2,178.00. 

Thirty-eight  cases  examined  in  the  Circuit  Court  of  Cook  County  over 
practically  the  same  period,  show  an  average  recovery  for  death  in  three 
cases  of  $379.00  and  in  26  noii-  fatal  cases  an  average  recovery  of  $600.00. 

In  fifty  consecutive  cases  examined  in  the  Municipal  Court  of  Chicago, 
the  average  amount  of  recovery  in  41  non-fatal  cases  was  $195.00.  The  fol- 
lowing secondary  table  gives  in  concrete  form  the  results  of  such  investi- 
gation. 


DEATHS. 


DISABILITY. 


COURT. 

No.  of  Cases. 

Average  Anr.tuit 
Recovered. 

No.  of  Cases. 

i 
Average  Amount 
Recovered. 

Supreme 

11 

$4,091  00 

14 

$5  728  00 

Apellate 

8 

1,436.00 

18 

585.00 

Superior             .... 

7 

1,313.00 

23 

2,17800 

Circuit  

3 

37900 

20 

600.00 

Municipal        

41 

195.00 

Totals  

29 

$2,302.00 

122 

$1,347.00 

General  Average : 

29  Deaths   $2,302.00 

122  Disability 1.347.00 

It  should  be  borne  in  mind  in  considering  these  figures  that  they  repre- 
sent only  the  cases  in  which  suit  was  instituted,  and  which  therefore  were 
necessarily  considered  by  at  least  one  party  to  the  controversy  as  being 
cases  in  which  the  employer  was  legally  liable.  The  tables,  of  course,  do 
not  include  that  large  class  of  cases  which  were  settled  without  suit,  either 
by  the  parties  themselves,  or  by  adjusters  or  attorneys,  out  of  court.  These 
averages  would  therefore  be  very  materially  reduced  if  these  cases  were 
included  in  the  computation. 

DELAY. 

The  tables  prepared  from  the  records  of  the  Appellate  and  Supreme  Court 
Reports  (herewith),  also  indicate  that  it  is  seldom  that  the  damages  are 
actually  received  by  the  employe,  or  his  dependents,  for  the  loss  which  he 
sustained  by  reason  of  the  industrial  accident,  within  a  period  of  less  than 
three  years.  One  of  the  cases  shown  in  the  Supreme  Court  covered  by  the 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION  77 

investigation  lasted  through  a  period  of  seven  years  and  nine  months,  from  the 
date  of  the  injury  to  the  date  of  the  final  judgment.  Another  covered  a  period 
of  seven  years  and  six  months.  One  a  period  of  six  years  and  five  months. 
Two  cases  covered  a  period  of  six  years  and  one  month,  etc.,  the  average  for 
for  the  Supreme  Court  of  twenty-two  cases  out  of  twenty-eight  investigated 
being  four  years  and  three  and  one-third  months. 

In  the  Appellate  Court  the  average  in  nineteen  cases  out  of  the  twenty- 
eight  investigated  was  three  years  and  one  and  one-third  months.  One  of 
these  cases  covered  a  period  of  nine  years  and  six  months ;  another  six  years 
and  eleven  months;  one  five  years  and  ten  months;  one  five  years  and  eight 
months,  etc.  The  averages  in  the  Supreme  Court  are  based  on  twenty-two 
cases  and  in  the  Appellate  Court  on  nineteen  cases  because  the  other  cases 
in  the  period  covered  do  not  show  in  the  published  reports  the  period  of  time 
which  elapsed  between  the  date  of  the  injury  and  the  date  of  the  final  de- 
cision. The  average  delay  shown  in  the  Appelate  Court  Reports  is  not  alto- 
gether trustworthy,  and  would  probably  be  increased  to  a  considerable  extent 
if  all  the  facts  were  ascertainable,  because  in  some  of  these  cases  appeals 
were  doubtless  prosecuted,  or  further  negotiations  had,  after  the  decision  in 
the  Appellate  Court. 

RESULTS  OF  APPEALS. 

The  tables  made  up  from  the  Supreme  Court  and  Appellate  Court 
Reports  also  demonstrate  that  in  addition  to  the  long  delay  involved 
in  securing  compensation  for  injuries  sustained  in  the  course  of  employment, 
the  employe,  in  a  large  number  of  cases,  after  securing  a  verdict  and  judg- 
ment in  the  lower  court,  suffers  a  reversal  of  his  judgment  in  the  courts  of 
appeal.  In  the  twenty-eight  cases  investigated  in  the  Supreme  Court  six  were 
reversed  in  which  the  total  recoveries  aggregated  $31,000.00;  and  nineteen 
were  affirmed,  aggregating  $102,700,  showing  that  about  30%  of  the  judgments 
in  the  Supreme  Court  for  that  period  were  reversed.  In  the  Appellate  Court 
thirteen  judgments  out  of  twenty-eight,  aggregating  $48,900,  were  reversed. 
Thirteen  cases  only  were  affirmed,  eleven  of  which  showed  the  amounts  recov- 
ered. These  eleven  judgments  aggregated  $22,090.  This  shows  exactly  50%  of 
the  cases  reversed,  and  the  total  amount  originally  recovered  in  the  cases  which 
were  reversed,  is  more  than  double  the  total  amount  involved  in  the  cases 
which  were  affirmed.  The  average  amount  of  the  judgment  in  the  thirteen 
cases  reversed,  was  $3,761.50,  and  the  average  amount  in  the  eleven  cases 
affirmed  was  $2,008.  In  the  other  two  affirmed  cases,  making  up  the  twenty- 
eight  examined  in  the  Appellate  Court,  no  recovery  was  had  in  the  lower  court. 

ATTORNEYS. 

The  examination  of  the  cases  in  the  Superior  Court  and  Circuit  Court 
of  Cook  County  also  showed  that  it  was  necessary  for  the  employe, 
in  a  large  number  of  cases,  to  engage  an  attorney  and  start  a  suit  before 
a  settlement  could  be  reached.  The  Superior  Court  records  show  that  fifteen 
cases  out  of  the  forty  examined  were  settled  after  suit  was  brought,  and 
in  the  Circuit  Court  twelve  cases  out  of  the  thirty-eight  examined  were 
settled  after  suit  was  brought.  All  these  cases,  of  course,  entailed  the  expense 


78 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION  79 

of  attorneys  for  both  parties  to  the  controversy,  and  in  most  cases,  it  will  be 
seen  by  reference  to  the  tables,  -that  the  amounts  of  recovery  were  small. 

A  record  was  also  made  from  the  cases  in  the  Supreme  and  Appellate 
Courts  and  the  Municipal  Court  of  Chicago,  of  the  number  of  attorneys  en- 
gaged in  each  case,  so  far  as  the  records  of  the  various  courts  would  show. 
The  average  number  of  attorneys  engaged,  as  shown  by  these  figures,  is  prob- 
ably too  low,  as  in  many  cases  other  attorneys  not  shown  of  record  in  the 
particular  case,  were  doubtless  interested.  The  records  of  the  Supreme  Court, 
however,  show  that  in  the  twenty-eight  cases  examined,  from  three  to  ten 
attorneys  were  employed,  or  an  average  of  about  five  and  two-thirds.  In  the 
Appellate  Court  the  average  is  four  and  one-third,  and  in  the  Municipal  Court 
of  Chicago  a  little  more  than  three. 

The  Illinois  Bar  Association  charges  are  $25.00  a  day  for  office  work 
and  $50.00  a  day,  and  upwards,  for  court  work,  iu  cases  of  this  kind. 

FAULT. 

The  investigation  into  the  question  as  to  the  proportion  of  negligence  or 
fault  as  between  the  employer  and  employe,  and  the  further  questions  to  the 
number  of  accidents  due  to  the  trade  risk,  the  act  of  God,  or  other  cause,  was 
attended  with  no  little  difficulty.  The  only  court  records  where  any  informa- 
tion of  this  kind  might  be  obtained,  were  those  of  the  Supreme  and  Appellate 
Courts,  and  even  here  it  was  often  very  difficult  to  ascertain,  for  the  pur- 
poses of  classification,  just  what  was  the  proximate  cause  of  the  accident. 
Out  of  the  twenty-eight  cases  investigated  in  the  Supreme  and  Appellate 
Courts,  the  following  table  has  been  prepared : 

Employers'  Employe's  Other 

Court.  Negligence.  Negligence.  Causes. 

Supreme    20  4  4 

Appellate 13  7  8 

Totals 33  11  12 

It  will  be  seen  that  approximately  20%  of  the  cases  which  reached  the 
Appellate  Courts  of  the  State,  involved  injuries  which  were  not  the  result  of 
negligence  on  the  part  of  either  the  employer  or  the  employe.  This  table,  of 
course,  does  not  take  into  account  any  of  those  claims  for  injury  in  which  the 
negligence  of  the  employer  was  so  doubtful  that  suit  was  not  brought,  or  if 
brought  was  unsuccessful  in  the  trial  court. 


80 


EMPLOYERS'  LIABILITY  COMMISSION 


AJ1AOD3JI  JO  a|BQ 


OPINIONS   OF   MEMBERS 
OF   THE    BAR 

nnnn 

A  letter  was  prepared  by  the  attorney  for  the  Commission  and  sent  out 
to  some  500  attorneys  and  judges  in  the  State  of  Illinois,  asking  their  opinion 
and  advice  on  the  constitutional  questions  involved  in  a  workmen's  compen- 
sation law  for  this  State.  The  letter  was  as  follows : 

Dear  Sir :—  June  8,  1910. 

You  are  doubtless  aware  that  by  act  of  General  Assembly  of  1910,  this 
Commission,  of  which  I  have  the  honor  to  be  the  attorney,  was  authorized 
for  the  purpose  of  investigating  the  problem  of  industrial  accidents,  and  espe- 
pecially  the  present  condition  of  the  law  of  liability  for  injuries  or  death 
suffered  in  the  course  of  industrial  employment  and  for  the  further  purpose 
of  inquiring  into  the  most  equitable  and  effectual  method  of  providing  for 
compensation  for  losses  suffered  thereby. 

After  considerable  study,  the  Commission  is  convinced  that  the  law  relat- 
ing to  Employers'  Liability  in  this  State,  based  on  tort,  is  unsatisfactory  to 
the  employers  and  employes  alike,  as  at  present  administered.  In  view  of 
our  conviction  and  the  further  fact  that  every  industrial  country  of  western 
Europe  has  discarded  this  basis  for  one  of  compensation,  the  Commission  is 
of  the  opinion  that  it  is  now  wise  to  consider  whether  or  not  it  is  advisable 
or,  under  our  constitution,  possible  for  the  State  of  Illinois  either  to  amend 
its  laws  in  this  regard  or  adopt  some  other  basis  of  liability  than  the  present 
one. 

In  view  of  the  importance  of  this  question,  I  am  asking  the  leaders  of 
the  bar  of  this  State  to  co-operate  with  the  Commission  by  submitting  their 
opinions  on  the  constitutionality  of  certain  suggested  changes  of  the  law  of 
this  State  in  regard  to  Employers'  liability,  which,  we  believe,  when  embraced 
in  the  published  report  of  the  Commission,  will  add  greatly  to  its  value.  In 
view  of  the  importance  of  the  legal  questions  involved,  the  Commission  has 
endorsed  my  suggestion  that  the  co-operation  of  prominent  attorneys  and 
judges  throughout  the  State  be  solicited. 

The  particular  questions  as  to  which  we  wish  your  opinion  are  as  follows : 

Are  there  constitutional  objections  to  the  enactment  by  the  Legislature 
of  this  State  of  the  following  statutes? 

1.  A  statute  providing  that  each  employer  in  this  State  shall  be  directly 
liable  to  compensate  each  employe  injured  in  his  employment  (without  regard 
to  the  question  of  fault  on  the  part  of  the  employe)  where  the  injury  was  not 
intentionally  caused  by  the  employe  himself,  the  amount  of  compensation  to 
be  limited? 


82 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION  83 

2.  Should  such  a  compensation  law  be  limited  to  employes  in  hazardous 
trades  only,  in  order  to  make  it  constitutional? 

3.  A  statute  of  the  same  purport  as  stated  in  question  No.  1,  which  shall 
also  provide  that  the  rights  given  thereunder  shall  be  exclusive  of  all  common 
law  or  statutory  rights  of  injured  employes  or  their  dependents  to  resort  to 
the  courts  of  law  for  compensation? 

4.  A  statute  authorizing  employers  and  employes  to  contract  with  regard 
to  responsibility  for  negligence  before  any  such  cause  for  action  shall  arise? 

5.  May  the  right  of  trial  by  jury  be  taken  away  from  either  the  employer 
or  employe  upon  the  question  of  liability,  or  the  amount  of  compensation  to 
be  received?  or  may  one  or  both  of  these  questions  be  determined  by  arbi- 
tration? 

6.  Can  we  abolish  the  defenses  of  fellow  servant,  and  assumption  of  risk, 
and  limit  or  abolish  the  defense  of  contributory  negligence? 

The  theory  of  workmen's  compensation,  as  you  doubtless  know,  is  that 
inasmuch  as  statistics  show  that  approximately  50%  of  industrial  accidents 
are  due  solely  to  the  trade  risk  and  are  not  traceable  to  the  negligence  of  any 
one,  the  general  subject  therefore  becomes  of  such  public  importance  as  to 
justify  legislation  under  the  police  power  providing  a  compulsory  scale  of 
compensation  which  shall  be  applicable  to  all  industries  alike  which  are  cov- 
ered by  the  provisions  of  the  law.  Legislation  of  this  kind  has  just  been 
enacted  in  New  York,  and  suggested  in  Wisconsin,  Minnesota,  etc.  A  statute 
containing  some  of  these  features  has  been  attempted  in  Massachusetts,  Mary- 
land and  Montana. 

You  will  understand  that  the  fact  that  the  Commission  asks  these  ques- 
tions is  not  an  indication  that  it  has  reached  a  conclusion  that  any  of  these 
changes  are  feasible.  Some  of  them,  however,  seem  to  raise  legal  questions 
of  grave  difficulty,  and  we  are  seeking  as  much  light  as  possible  from  the  bar 
as  to  the  validity  of  each  of  them. 

May  we  hope  to  receive  your  co-operation  and  your  opinion  upon  these 
constitutional  questions  by  June  15,  1910? 

By  order  of  the  Commission:  Respectfully, 

EDWIN  R.  WRIGHT,  Secretary.  SAMUEL  A.  HARPER,   Attorney. 


Letters  were  received  from  the  following  attorneys  and  judges : 

Edward  Osgood  Brown,  Chicago. 

Edgar  A.  Bancroft,  Chicago. 

Ernst  Freund,  University  of  Chicago,  Chicago. 

W.  T.  Alden,  Chicago. 

Albert  D.  Early,  Rockford. 

J.  M.  Riggs,  Winchester. 

Maclay  Hoyne,  Chicago. 

Almon  W.  Bulkley,  Chicago. 

Thomas  G.  Windes,  Chicago. 

Marshall  D.  Ewell,  Chicago. 

S.  S.  Gregory,  Chicago. 

Isaac  N.  Bassett,  Aledo. 

John  S.  Stevens,  Peoria. 

These  letters  follow: 


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June  7,  1910. 
Samuel  A.  Harper,  Esq., 

Attorney  for  the  Employers'  Liability  Commission  of  the  State  of  Illinois, 

714  Hartford  Building,  Chicago. 
My  Dear  Sir  :— 

I  received  today  your  letter  of  June  4th,  asking  me  to  give  to  you  by  June 
15th  my  opinion  on  various  constitutional  questions  stated  in  your  letter  and 
hereinafter  in  this. 

The  short  time  within  which  the  answers  are  desired  and  other  engage- 
ments pressing  on  me  prevent  me  giving  to  my  reply  that  careful  attention 
which  it  should  have.  I  should  prefer  to  renew  in  detail  as  to  each  question 
the  investigation  which  I  have  incidentally  or  otherwise  at  former  times 
given  to  it,  that  my  answers  might  be  the  result  of  the  best  thought  and  con- 
sideration within  my  ability.  But  although  this  course  is  prevented  by  the 
circumstances  I  have  named — my  very  great  interest  in  the  subject,  my  entire 
sympathy  with  the  work  of  the  Commission,  and  the  fact  that  my  short 
experience  on  the  nisi  prius  bench  and  my  more  extended  one  in  the  Appellate 
Court  of  the  First  District  of  Illinois — make  me  feel  very  deeply  in  the  mat- 
ter, and  compel  me  to  acquaint  myself  with  the  factors  involved  in  the 
questions  propounded  by  you,  urge  me  to  an  immediate  answer  in  the  hope 
that  it  may  not  be  entirely  unserviceable. 

Your  first  question  is: 

Are  there  constitutional  objections  to  the  enactment  by  the  Legislature 
of  this  State  to  a  "Statute  providing  that  each  employer  in  this  State  shall 
be  directly  liable  to  compensate  each  employe  injured  in  his  employment 
(without  regard  to  the  question  of  fault  on  the  part  of  the  employe)  where 
the  injury  was  not  intentionally  caused  by  the  employe  himself,  the  amount 
of  compensation  to  be  limited?" 

My  answer  is  that  I  see  none.  The  basis  of  such  a  statute  would  simply 
be  that  the  law  read  into  every  contract  of  hiring — a  guaranty  by  the  master 
to  his  servant  up  to  a  certain  amount  against  injury  to  life  and  limb  whilst 
the  servant  is  going  about  his  master's  business.  This  certainly  violates  no 
principle  of  natural  justice.  When  one  man  buys  the  use  of  another  man's 
body  in  the  labor  market  for  a  daily  or  weekly  wage — he  may  well  by  the 
law  be  held  to  have  assumed  to  have  insured  that  body  against  the  happen- 
ing of  events  which  if  they  do  chance  to  happen  will  render  the  man  and  his 
family  helpless.  The  compensation  in  such  case  has  nothing  to  do  with  the 
negligence,  delinquency  or  tort  of  the  master.  It  is  a  matter  of  insurance 
— one  of  the  implied  terms  of  an  unwritten  contract  of  hiring. 

And  I  not  only  think  that  limited  insurance  a  reasonable  factor 
in  such  a  contract  and  in  accordance  with  natural  justice,  but  one  that  con- 
stitutionally may  be  enacted  and  read  into  every  contract  of  employment 
thereafter  made.  Conditions  in  the  world  have  very  much  changed  in  the 
two  hundred  years  that  have  passed  since  the  doctrine  that  a  master  must 
answer  for  his  servant's  negligence  in  the  course  of  the  master's  business, 
was  established  by  the  English  courts.  It  was  a  judgeniade  doctrine  and  its 
applications  and  limitations  were  suited  to  the  times  and  the  society  in 
which  it  found  utterance.  Since  that  time  the  English  speaking  peoples  have 


86 


EMPLOYERS'  LIABILITY  COMMISSION 


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been  evolving  together  into  a  vast  aggregated  industrial  organization — run- 
ning its  machinery  and  distributing  its  products  by  night  and  day. 

The  doctrine  and  its  limitations  need  to  meet  these  present  conditions 
by  radical  change.  There  was  no  more  "natural  justice"  in  making  a  master 
answerable  for  the  negligence  of  a  servant  whom  he  believed  careful  when 
he  hired  him,  than  there  is  in  making  a  master  an  insurer  of  his  servants 
against  accident  of  any  sort.  The  first  of  these  doctrines  was  established, 
not  on  the  ground  of  its  natural  justice,  but  because  the  common  safety 
required  that  if  a  man  chose  to  carry  on  the  operations  of  his  life  and 
business  by  hiring  others  to  do  his  work  for  him  he  must  be  held  to  guar- 
antee the  capacity  of  his  servants  to  answer  for  acts  and  defaults  com- 
mitted by  them  ,in  the  course  of  that  work.  The  second  may  well,  on  account 
of  a  more  overpowering  necessity  in  our  present  state  of  society,  be  declared 
by  the  Legislature  to  be  a  part  of  every  contract  of  hiring.  It  is  a  matter  of 
expediency  and  necessity,  not  of  abstract  justice.  I  see  nothing  in  right 
reason,  and  I  am  glad  to  say  nothing  in  our  written  constitution  forbidding 
the  enactment  of  such  a  law. 

Your  second  question  is: 

"Should  such  a  compensation  law  be  limited  to  employes  in  hazardous 
trades  only,  in  order  to  make  it  constitutional?" 

My  answer  is  that  I  do  not  think  so. 

The  third  question  is: 

"Are  there  constitutional  objections  to  a  statute  similar  to  that  sug- 
gested in  question  number  one,  which  shall  also  provide  that  the  rights  given 
thereunder  shall  be  exclusive  of  all  common  law  or  statutory  rights  of  in- 
jured employes  or  their  dependents  to  resort  to  the  courts  of  law  for  com- 
pensation?" 

This  question  is  one  of  interest  and  difficulty.  My  opinion — given  with 
some  diffidence  because  of  a  want  of  time  for  the  thorough  investigation  I 
would  prefer  to  make  of  it — is  that  no  such  objections  exist  to  making  such 
a  remedy  resting  on  the  implied  contract  of  insurance  exclusive  in  cases 
where  the  injury  occurs  through  the  negligence  of  an  agent  or  employe  of 
the  master  believed  reasonably  and  in  good  faith  by  the  master  to  have 
been  competent.  In  other  words,  I  believe  that  the  doctrine  of  Respondeat 
'Superior  in  such  cases  of  tort  by  a  servant  may  be  abrogated  and  the  doc- 
trine of  compulsory  insurance  substituted  by  legislative  enactment. 

Where  the  injury  is  alleged  to  result  either  from  the  direct  negligence 
or  intentional  act  of  the  master  himself,  I  doubt  whether  making  the  remedy 
under  such  a  statute  exclusive  would  not  conflict  with  the  provision  of  the 
Bill  of  Rights  that  every  person  ought  to  find  a  certain  remedy  in  the  laws 
for  all  injuries  and  wrongs  which  he  may  receive  in  his  person,  property 
or  reputation.  In  such  cases,  it  seems  to  me  it  would  be  necessary  to  allow 
the  injured  person  the  alternative  of  taking  advantage  of  the  act  or  pur- 
suing his  remedy  under  the  common  law. 

The  fourth  question  is  whether  there  are  constitutional  objections  to 
"A  statute  authorizing  employers  and  employes  to  contract  with  regard 
to  responsibility  for  negligence  before  any  such  cause  for  action  shall  arise?" 
I  do  not  clearly  understand  this  question. 


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EMPLOYERS'  LIABILITY  COMMISSION  89 

If  it  refers  to  what  is  generally  termed  "contracting  out"— meaning  a 
contract  by  which  the  employe  before  the  hiring  agrees  to  waive  and  release 
all  legal  remedies  for  injuries  which  he  may  suffer  in  the  course  of  his 
employment — I  do  not  think  there  are  constitutional  objections  to  such  con- 
tracts unless  the  claim  often  made  that  they  are  contrary  to  public  policy 
is  to  be  deemed  a  constitutional  question.  The  courts  of  Illinois  have  often 
decided  that  such  contracts  are  invalid,  as  contrary  to  public  policy,  how- 
ever, although  those  of  England  and  of  some  American  jurisdictions  have 
held  the  other  way. 

But  the  Supreme  Court  of  Illinois  has  also  held  that  a  contract  to 
accept  the  benefits  ,of  an  insurance  fund  as  an  alternative  to  a  legal  remedy 
is  not  invalid  as  contrary  to  public  policy,  and  I  suppose  would  so  hold  as 
to  the  voluntary  acceptance  of  the  benefits  of  a  Workman's  Compensation 
Act  as  an  alternative  to  any  legal  remedies. 

If  the  question  means  to  ask  my  opinion  as  to  the  constitutional  right 
of  master  and  servant  to  make  a  contract  before  employment  waiving  all 
benefit  of  either  "Insurance,"  "Workman's  Compensation"  or  legal  remedy 
in  case  of  injuries,  I  can  only  say  that  while  this  constitutional  right  might 
exist,  I  think  that  independently  of  the  question  whether  such  contracts 
would  be  invalid  as  against  public  policy,  a  Workman's  Compensation  Act 
which  did  not  forbid  such  "contracting  out"  would  be  weak  and  futile. 

Whether  such  prohibition  would  be  held  unconstitutional  by  the  Supreme 
Court  as  interfering  with  "freedom  of  contract"  I  cannot  prophesy  with 
confidence,  but  I  think  not.  If  it  should  be  held  unconstitutional  the  Con- 
stitution should  be  in  my  opinion  modified  in  that  particular. 

The  fifth  question  is: 

"May  the  right  of  trial  by  jury  be  taken  away  from  either  the  em- 
ployer or  employe  upon  the  question  of  liability  or  the  amount  of  compen- 
sation to  be  received?  Or-  may  one  or  both  of  these  questions  be  determined 
by  arbitration?" 

The  question  here  presented  is  doubtful  and  important.  My  opinion  is 
that  except  as  to  injuries  claimed  to  be  inflicted  by  the  direct  act  or  default 
of  the  employer,  the  same  power  which  I  believe  could  abrogate  the  doctrine 
of  Respondeat  Superior,  could  relegate  the  question  of  liability  and  damages 
under  a  statute  based  on  a  quasi-contract  of  insurance,  to  arbitrators  to  de- 
cide. 

The  sixth  question  is  whether  we  can  abolish  the  defenses  of  "fellow 
servant"  and  "assumption  of  risk"  and  limit  or  abolish  the  defense  of  "con- 
tributory negligence?" 

I  have  no  doubt  that  this  can  be  done  by  appropriate  legislation.  The 
doctrines  of  "fellow  servants"  or  "common  employment"  and  of  "assumption 
of  risk"  have  been  developed  and  from  time  to  time  modified,  limited,  en- 
larged and  diminished  by  the  decisions  and  opinions  of  courts.  So  too 
notably  in  Illinois  has  the  doctrine  of  "contributory  negligence." 

Even  without  a  "Workman's  Compensation  Act"  I  believe  it  to  be  en- 
tirely within  the  power  of  the  Legislature  to  limit  or  abrogate  the  doctrines 
so  far  as  to  provide  that  once  it  is  established  that  but  for  the  negligence 
complained  of  the  accident  would  not  have  happened — the  master  shall  be 
liable  whether  the  negligence  was  his  or  his  servant's. 


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EMPLOYERS'  LIABILITY  COMMISSION  91 

In  the  case  of  any  Workman's  Compensation  Act  worth  enactment,  it 
seems  to  me  these  defenses  must  necessarily  be  eliminated,  and  indeed  the 
whole  matter  of  negligence,  except,  of  course,  that  it  would  be  not  unrea- 
sonable to  incorporate  in  such  a  statute  of  compulsory  insurance,  the  lan- 
guage of  the  English  Act — 

"If  it  is  proved  that  the  accident  is  solely  attributable  to  the  serious  and 
wilful  misconduct  of  a  workman,  any  compensation  claimed  in  respect  of 
injury  to  that  workman  shall  be  disallowed." 

I  am,  very  truly  yours, 

EDWABD  OSGOOD  BROWN. 


July  1,  1910. 
Dear  Sir: — 

Your  circular  letter  of  June  4th  was  duly  received.  I  am  very  much  in- 
terested in  the  purposes  of  this  Commission  and  made  it  one  of  the  main 
points  in  the  President's  address  at  the  late  meeting  of  the  State  Bar  Asso- 
ciation. 

Of  course,  the  legal  questions  which  you  raise  are  serious  ones,  and  upon 
them  I  would  not  care  to  express  an  opinion  until  I  had  briefed  them  thor- 
oughly. It  seems  to  me  that  the  end  to  be  attained  is  the  removal  of  the 
whole  question  from  the  field  of  dispute  and  litigation ;  the  adoption  of  a 
plan  which  will  give  the  employe  promptly  and  certainly  compensation  for, 
and  fairly  measured  by,  his  industrial  disability  from  whatever  cause  except 
his  own  wilful  acts. 

As  to  the  constitutional  questions :  I  presume  you  have  had  them  thor- 
oughly briefed;  if  not,  they  should  be,  and,  if  the  briefing  were  then  submit- 
ted, with  your  inquiries,  they  would  stimulate  investigation  and  result  in 
more  valuable  answers.  I  am  sending  you  a  copy  of  the  Chicago  Legal  News 
containing  my  suggestions  on  the  subject. 

Very  truly  yours, 

EDGAR  A.  BANCROFT. 
Samuel  A.  Harper,  Esq., 

714  Hartford  Building,  Chicago. 

The  recommendations  made  to  the  Bar  Association,  and  which  Mr.  Ban- 
croft refers  to  in  his  letter,  are  as  follows : 

"The  subject  of  'Employer's  Liability'  or  rather  Workingman's  Compen- 
sation and  Industrial  Insurance  is  worthy  of  special  consideration  by  the  Bar 
and  the  general  public. 

Its  chief  importance  is  not  in  the  legal  questions  involved,  nor  yet  in 
providing  a  surer  recompense  to  injured  workmen.  It  lies  in  the  fact  that, 
if  a  plan  is  found  for  insuring  every  workman  against  loss  in  industrial 
efficiency  through  the  accidents  of  his  employment,  it  will  not  only  end  the 
personal  injury  disputes  and  relieve  the  courts  of  a  very  large  burden,  but 
it  will  also  preserve  the  independence  of  the  men  and  their  families  and 
avoid  the  wasteful  anti-social  influence  of  such  strifes. 

For  the  efficiency  of  modern  machinery  is  not  more  wonderful  than  the 
increasing  efficiency  of  the  workmen  who  operate  the  machines.  And  both 
are  capable  of  indefinite  enlargement  if  proper  regard  is  paid  to  the  character 


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EMPLOYERS'  LIABILITY  COMMISSION  93 

and  welfare  of  the  workmen.  Without  any  additional  physical  labor  or 
mental  strain,  the  quality  and  quantity  of  their  work  may  be  increased 
by  their  good  feeling  toward  their  employer,  and  their  interest  in  the  success 
of  the  enterprise.  Therefore,  many  manufacturers  are  joining  sympathetically 
in  the  discussion  of  a  uniform  law  which  will,  in  some  fair  and  complete 
manner,  insure  all  employes  against  accidents  occurring  while  on  duty. 

As  pointed  out  by  Prof.  Mechem's  very  instructive  address  of  last  year— 
the  employer's  present  liability  for  the  acts  of  his  servant  within  the  scope 
of  his  duty  has  strictly  no  ethical  or  logical  basis,  but  was  engrafted  upon 
the  law.  Of  like  origin  are  the  counterpart  rules  as  to  'fellow  servant,' 
'assumed  risk'  and  'contributory  negligence.'  To  the  proposal  to  abolish 
these  defenses  it  is  natural  for  the  employer  and  the  employer's  lawyer  to 
object  that  this  is  taking  one  man's  property  for  the  benefit  of  another. 

So  far,  the  principal  legislation  in  America  is  the  federal  law  as  to  in- 
terstate railroads — making  the  carrier  the  insurer  of  the  safety  of  its  em- 
ployes while  on  duty  against  injuries  from  all  causes  except  their  own  willful 
acts. 

In  Germany  the  whole  matter  is  handled  by  a  department  of  the  Govern- 
ment, which  operates  a  plan  of  compulsory  industrial  insurance.  Every  em- 
ployer must  insure  with  the  Government  all  his  regular  employes  whose 
annual  wage  is  less  than  $500.  Each  employe  is  enrolled  in  a  Trade  As- 
sembly embracing  all  workmen  in  that  class  of  work,  and  his  employer  pays 
into  the  fund  of  such  particular  Trade  Assembly  a  certain  per  cent  of  the 
total  average  annual  wages  of  such  employes — the  payment  varying  accord- 
ing to  the  hazards  of  the  occupation.  When  an  accident  occurs  the  Govern- 
ment's Insurance  Department  takes  charge  of  the  man,  provides  surgical  at- 
tention and  hospital  service,  and  pays  certain  monthly  sums  so  long  as  his 
disability  continues.  If  he  dies,  it  provides  for  his  funeral  and  gives  a 
certain  pension  to  the  members  of  his  family  dependent  upon  him.  Employes 
who  receive  $500  or  more  a  year,  or  who  are  employed  temporarily  or  outside 
any  specified  class,  are  insured  only  at  their  option  and  by  making  a  monthly 
contribution  from  their  wages.  The  employer  is  not  required  to  make  any 
provision  for  them,  but  has  only  his  legal  liability,  if  any,  to  meet  in  case 
of  accident.  Against  this  he  can  protect  himself,  as  the  employer  often  does 
in  this  country,  by  insuring  in  a  private  liability  insurance  company. 

The  Government  Insurance  Department,  in  dealing  with  insured  employes, 
has  a  fixed  scale  of  compensation  quite  similar  to  that  of  the  accident  insur- 
ance companies  of  this  country.  Each  permanent  disability  has  its  fixed 
compensation,  being  a  certain  specified  per  cent  of  the  workman's  average 
wages.  In  case  of  death,  his  family  receive  an  amount  equal  to  his  average 
wages  for  a  certain  period,  as  two  or  three  years.  Of  course  the  per  cent 
varies  according  to  the  occupation.  The  loss  of  the  left  hand,  for  example, 
is  relatively  a  smaller  disability  for  a  clerk  than  for  a  workman. 

In  Russia  the  law  casts  the  burden  for  all  injuries  to  employes  while  on 
duty,  except  those  due  to  the  fault  of  the  employe  himself,  directly  upon  the 
employer.  And  it  gives  to  such  employe — or,  in  case  of  his  death,  to  his 
dependent  relatives — a  lieu  on  the  factory  for  the  payment  of  damages  that 
have  been  or  may  be,  recovered,  and  for  the  payment  of  any  pension  which 


EMPLOYERS'  LIABILITY  COMMISSION 


EMPLOYERS'  LIABILITY  COMMISSION  95- 

may  be  fixed  by  a  judgment  of  the  court  with  the  consent  of  the  plaintiff,  or 
agreed  upon  between  the  parties. 

The  English  Employer's  Liability  Act,  like  the  Russian,  provides  for  a 
change  in  the  rule  of  liability,  rather  than  for  a  scheme  of  industrial  insur- 
ance— which  takes  and  keeps  the  subject  of  compensation  for  accidents  out 
of  the  courts. 

The  difference  between  these  two  methods  of  dealing  with  the  subject 
is  important.  The  lawyer  is  apt  to  fix  his  attention  upon  the  legal  questions, 
and  the  discussion  of  changes  in  the  rules  of  liability  tends  in  the  same  direc- 
tion. But  this,  it  seems  to  me,  misses  the  essential  point  in  the  problem : 
which  is  to  secure  to  the  employes  industrial  insurance  that  will  be  auto- 
matic and  free  from  wasteful  expense;  that  will  require  no  attorneys,  nor 
court  contests  with  their  uncertainties  and  delays,  but  will  give  to  the 
employe  a  fair  and  a  fixed  recompense  according  to  his  disability,  and  save 
the  employer  from  the  costs  of  litigation,  and  make  the  loss  to  the  employer 
precisely  equal  to  the  benefit  to  the  employe. 

Therefore,  the  discussion  should  not  center  upon  constitutional  ques- 
^tions,  or  the  changes  in  the  law  of  liability  or  grounds  of  defense.  But  upon 
a  plan,  to  be  fairly  worked  out  by  competent  and  disinterested  men,  which 
will  bring  such  a  saving  to  the  employer  o^  time  and  annoyance  and  the 
expenses  of  litigation  as  will  recompense  him  for  waiving  the  question  of 
his  constitutional  rights,  and  will  bring  such  a  similar  benefit  to  the  employe 
— specific  and  certain  compensation  for  each  injury — that  he  can  well  afford 
to  waive  the  advantage  which  he  may  occasionally  have  in  the  unlimited 
damages  which  a  jury  may  award. 

Under  the  present  rules  of  the  employer's  liability  in  this  State,  the 
cost  of  accidents  to  a  manufacturing  business  of  average  hazards  is  from 
i<J-5  to  4-5  of  one  per  cent  of  the  annual  payroll ;  that  is,  if  an  employer 
has  one  thousand  men  and  an  annual  payroll  of  $400,000,  it  now  costs  him 
for  accidents  on  the  average  from  $2,400  to  $3,200  per  annum.  That  amount 
represents : 

(a)  What  is  paid  to  employes  in  settlement  or  after  judgment.  Of 
this,  on  the  average,  one-half  is  taken  for  attorney's  fees,  lost  time  pre- 
paring for  and  during  trial,  and  actual  expenses; 

(6)  The  attorney's  fees  and  expenses  and  loss  of  time  on  the  part  of 
the  employer,  which  represents  an  amount  equal  to  from  50  to  75  per  cent 
of  the  total  payments  made. 

Therefore,  the  employer  is  paying  today  three  or  four  times  as  much 
on  account  of  personal  injuries  as  his  employes  themselves  receive.  Each 
is  damaged  by  the  annoyance,  the  hostile  feelings  and  the  interference  with 
his  regular  business  which  litigation  threatened  or  pending,  always  entails, 
with  the  further  and  indirect  damage  to  each  from  the  unfriendliness  of  the 
other.  In  addition  to  all  this,  society  is  suffering  the  expenses  of  litigation 
and  the  injury  of  disturbed  relations  between  employer  and  employe. 

Both  employer  and  employe  would  be  gainers,  measured  merely  in  dollars, 
from  a  method  under  which  one  would  pay  and  the  other  would  receive  a 
reasonable  amount  in  every  case  of  injury,  which  both  would  know  in  ad- 
vance and  which  would  be  paid  and  received  without  strife,  or  litigation. 
Such  is  the  only  solution  really  worth  while;  and  it  is  worthy  the  best 


96 


EMPLOYERS'  LIABILITY  COMMISSION 


EMPLOYERS'  LIABILITY  COMMISSION  97 

thought  and  effort  of  the  members  of  our  profession,  as  well  as  of  employers 
and  employes. 

In  Russia,  the  courts,  without  a  statute  on  the  subject,  have  adopted 
the  German  scale  as  the  best  evidence  to  be  obtained  of  the  actual  pecuniary 
damage  from  the  particular  injury ;  so  that,  when  a  workman  brings  an 
action  for  the  loss  of  a  hand,  the  master's  liability  having  been  determined, 
the  court  fixes  the  amount  by  reference  to  the  German  schedule,  giving  him 
such  per  cent  of  his  annual  wage  as  is  assigned  by  the  German  law  to  such 
disability  to  a  man  in  such  employment.  But  this  leaves  two  questions  to 
be  litigated:  (1)  Whether  the  injury  was  caused  by  the  employe  himself; 
and  (2)  The  present  value  of  such  per  cent  of  his  average  wages  for  the 
period  of  his  probable  disability.  The  court  cannot,  without  the  plaintiff's 
consent,  enter  a  judgment  for  monthly  payments.  Therefore,  it  is  only  a 
partial  solution.  It  is  to  the  interest  of  society  that  the  disability,  payment, 
like  the  earnings  before  disability,  should  be  monthly,  to  avoid  the  hazard 
of  loss  or  misuse  of  the  money  paid. 

Therefore,  unless  we  are  to  adopt  the  German  plan  of  a  governmental 
department  of  insurance — which  presents  many  serious  difficulties — an  ade- 
quate law,  instead  of  forbidding  arrangements  between  employer  and  em- 
ployes to  effect  this  end,  should  encourage  and  legalize  any  plan  which 
provided  definite  and  fair  compensation  for  all  classes  of  injuries  at  least 
equal  to  a  schedule  of  minimum  payments  which  the  law  should  fix.  Instead 
of  remitting  the  parties,  as  our  law  at  present  does,  to  the  uncertainties  and 
delays  of  litigation,  it  should  so  limit  the  possible  advantages  of  strife  to 
either  party  that  it  would  be  to  the  mutual  interest  of  both  to  agree. 

To  abolish  the  fellow  servant  and  assumed  hazard  rules,  to  limit  con- 
tributory negligence,  and  thus  enlarge  the  employer's  responsibility — as  in 
the  federal  law — without  any  fair  limit  as  to  the  amount  of  recovery, 
is  simply  offering  new  inducements  to  each  side  to  litigate.  This  will  in- 
crease, rather  than  lessen,  the  strife,  with  all  its  disadvantages  to  the  parties 
and  to  society  at  large. 

The  recent  act  for  the  appointment  of  a  Commission  to  study  this  ques- 
tion, in  providing  that  six  of  its  members  shall  be  employers  and  six  shall 
be  employes  or  their  representatives,  illustrates  the  present  partial  view  of 
the  problem.  It  treats  it  as  a  question  affecting  only  two  groups  of  society — 
employers  and  employes.  The  great  body  of  society  which  supports  the 
courts  and  is  injured  by  trade  strifes,  and  which  ought  to  be  impartial,  is 
not  represented.  It  is  to  be  hoped  that  the  importance  of  the  subject  will 
so  impress  itself  upon  the  Commissioners  that  they  will  have  no  thought  of 
obtaining,  in  their  conferences,  particular  advantages  for  the  side  which  they 
represent,  but  will  be  anxious  to  study  both  sides  with  impartiality  and  will 
act  with  independence  in  following  their  conclusions.  It  is  not  a  subject 
for  trading  or  compromise;  it  must  be  dealt  with  in  a  large,  broad,  public- 
spirited  way,  with  society's  interest,  as  well  as  that  of  the  immediate  parties, 
always  in  view." 


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EMPLOYERS'  LIABILITY  COMMISSION  99 

June  22,  1910. 
Mr.  Samuel  A.  Harper,  Attorney,  Employers'  Liability  Commission, 

317  Fisher  Building,  Chicago. 
My  Dear  Mr.  Harper: — 

I  had  intended  to  reply  to  your  letter  of  June  7th  before  this,  but  It 
somehow  escaped  my  attention. 

You  desire  expressions  of  opinion  upon  a  number  of  points  relating  to 
the  constitutionality  of  legislation  in  regard  to  employers'  liability. 

Questions  1  and  2  may  perhaps  be  answered  together.  They  raise  the 
fundamental  issue  as.  to  whether  liability  may  be  imposed  upon  the  employer 
for  an  injury  happening  to  an  employe  in  the  course  of  his  employment  for 
which  the  employer  is  in  no  way  to  blame  and  which  may  be  due  to  some 
fault  of  the  employe,  as  long  as  this  fault  does  not  amount  to  a  willful 
causation  of  the  injury,  or  other  willful  misconduct. 

I  may  perhaps  refer  to  two  attempts  upon  my  part  to  deal  with  this 
problem:  One  in  my  treatise  on  the  police  power  in  section  621-634,  and 
especially  632-634;  the  other  in  an  article  of  the  Green  Bag,  volume  19, 
page  80.  I  am  of  the  opinion  that  it  is  competent  for  the  Legislature  to 
impose  such  liability  in  the  nature  of  relief  rather  than  full  indemnity  where 
the  injury  results  directly  from  the  employment  of  hazardous  machinery  or 
other  hazardous  instrumentalities  or  conditions  of  work.  I  do  not  believe 
that  it  is  competent  for  the  Legislature,  in  case  of  an  ordinary  employment 
not  distinguished  by  any  special  hazard,  to  shift  the  consequences  of  the 
fault  of  the  employe  upon  the  employer  simply  for  the  reason  that  the  rela- 
tion of  employment  exists  between  the  two.  I  think  that  there  should  be 
some  additional  element  which  justifies  the  shifting  of  the  burden.  It  is  a 
very  grave  and  entirely  unsettled  question  whether  that  additional  element 
can  be  found  in  the  mere  fact  that  the  employer  is  better  able,  economically 
speaking,  to  bear  the  burden,  and  I  think  that  in  a  considerable  number  of 
employments  this  supposed  ability  would  be  a  pure  assumption  unwarranted 
by  the  facts,  especially  where  the  damages  recoverable  would  be  unlimited 
in  amount. 

Where  the  concern  in  which  the  injury  happens  is  a  very  large  one  I 
think  there  would  be  some  justification  for  shifting  the  burden,  not  merely 
because  in  that  case  the  economic  disparity  between  employer  and  employe  is 
apt  to  be  greater  than  where  there  are  only  a  few  employes,  but  also  be- 
cause in  a  large  concern  the  conditions  of  employment  are  apt  to  be  such 
that  all  persons  engaged  in  the  work  appear  as  parts  of  a  great  impersonal 
machine  and  the  element  of  individual  agency,  control,  and  responsibility 
is  to  a  certain  extent  eliminated  or  at  least  altered.  How  to  distinguish  be- 
tween a  large  and  a  small  concern  must  be  more  or  less  a  matter  of  positive 
determination  and  whether  you  draw  the  line  at  10,  25,  50  or  100  employes 
there  will  inevitably  be  some  element  of  arbitrariness,  which,  however,  if 
the  principle  of  the  distinction  is  sound,  ought  not  to  be  fatal. 

I  think  it  would  be  wiser  for  the  beginning  to  confine  the  legislation  to 
hazardous  employments.  In  that  case,  too,  the  question  would  be,  what 
employments  should  be  singled  out?  I  think  that  upon  the  basis  of  accident 
insurance  rates  it  would  be  possible  to  agree  upon  those  employments  which 
are  extra-hazardous  and  it  would  also  be  possible  to  class  apart  all  employ- 


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EMPLOYERS'  LIABILITY  COMMISSION  101 


ments  on  power-driven  machinery,  all  employments  in  exposed  situations, 
and  all  employments  that  have  to  Jdea],  with  heavy,  objects  in  motion.  In 
other  words,  I  do  not  think  that  ft,W£ld  Be*  xlifficWt ;  to  find  a  basis  for 
setting  apart  either  all  extra-ha^rdous-  em^l9vmofits>,or>ail  dangerous  em- 
ployments. '','.'*  \  I ,,*',''  1>, ' '  '\  J  '%  \  V  » ', 

However,  within  the  class  of  extra-hazardous,  or  the  class  of  dangerous 
employments,  if  you  wish  to  make  other  discriminations  you  will  be  con- 
fronted by  serious  difficulty  under  the  decisions  of  our  Supreme  Court.  I 
am  thinking  particularly  of  the  classification  recommended  by  the  New  York 
Commission,  which  singles  out  employments  on  the  ground  that  they  are 
non-competitive  as  far  as  other  states  are  concerned.  If  you  say  that  these 
employments  are  singled  out  because  they  cannot  move  out  of  the  State,  it 
looks  like  arbitrary  discrimination;  if  you  say  that  they  are  singled  out 
because  they  are  not  exposed  to  the  competition  of  industries  operating  under 
less  stringent  laws,  it  looks  like  very  reasonable  discrimination.  A  good 
deal  would  therefore  depend  upon  how  the  matter  is  put  upon  the  face  of 
the  statute  and  a  proper  recital  in  the  statute  of  the  reason  for  the  dis- 
crimination might  be  of  considerable  value.  However,  I  feel  great  doubt 
as  to  the  New  York  classification. 

As  to  question  3,  I  believe  that  it  is  more  than  doubtful  whether  the 
Legislature  may  provide  that  a  common  law  right  of  action  for  actual  dam- 
ages, based  upon  the  fault  of  the  employer,  may  be  abrogated  in  favor  of  a 
right  of  action  more  limited  as  to  the  amount  recoverable,  although  more 
extended  as  to  the  causes  of  recovery.  I  believe  that  it  would  be  unsafe  to 
try  to  take  away  the  common  law  right  to  sue  for  injury  caused  by  negli- 
gence. But  I  believe  that  the  Legislature  may  require  the  employe,  after  the 
injury,  to  make  his  choice  between  the  common  law  right  of  action  and  the 
new  statutory  right  of  action  and  provide  that  any  step  taken  to  enforce  his 
common  law  right  shall  forfeit  the  benefit  of  the  new  statute. 

As  to  question  4,  I  think  there  is  no  doubt  that  the  Legislature  may 
authorize  employer  and  employe  to  contract  with  regard  to  responsibility 
for  negligence  before  a  cause  of  action  shall  arise. 

As  to  question  5,  I  do  not  believe  that  the  employer  can  be  deprived  of 
his  right  to  have  either  the  fact  of  his  liability  or  the  amount  of  the  com- 
pensation payable  by  him  determined  by  a  jury.  I  think,  however,  that  the 
employe,  in  so  far  as  he  gets  an  entirely  new  right,  may  be  required  to 
accept  such  conditions  of  recovery  as  the  Legislature  may  impose.  In  other 
words,  that  the  employe,  but  not  the  employer,  may  be  required  to  have 
the  claim  determined  by  arbitration.  A  provision  in  the  statute  that  there 
shall  be  a  jury  trial  upon  the  demand  of  the  employer  would,  I  think,  be 
necessary,  and  would  also  be  entirely  harmless  since  the  employer  would  be 
pretty  sure  to  waive  his  rights  under  this  provision. 

As  to  question  6,  I  believe  that  the  defense  of  fellow-servant  and  of 
assumption  of  risk  may  be  abrogated.  I  also  feel  certain  that  the  doctrine 
of  contributory  negligence  may  be  superceded  by  the  doctrine  of  comparative 
negligence.  But  the  entire  abrogation  of  the  doctrine  of  contributory  negli- 
gence is  involved  in  the  same  difficulty  as  the  imposition  of  liability  upon 
the  employer  without  any  fault  on  his  part. 

Yours  faithfully,       EENST  FBEUND. 


102 


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EMPLOYERS'  LIABILITY  COMMISSION  103 

June  20,  1910. 
Mr.  Samuel  A.  Harper,  Attorney  for  Employers'  Liability  Commission, 

714  Hartford  Building,  Chicago. 
Dear  Sir: — 

I  duly  received  your  letter  of  June  4th,  and  I  regret  exceedingly  that 
I  have  been  unable  to  give  the  very  interesting  subject  matter  of  your  letter 
but  little  consideration  since  that  time,  as  I  have  been  out  of  the  city  most 
of  the  time.  The  questions  submitted  are  grave  ones,  and  are  entitled  to 
much  thought  and  consideration  on  the  various  propositions  of  law,  which 
I  regret  to  say  I  have  been  unable  to  consider  or  investigate  up  to  this  time. 

I  am  quite  willing  to  give  you  my  off-hand  opinion  on  the  constitutionality 
;of  the  six  propositions  suggested,  but  I  want  you  to  thoroughly  understand 
that  my  opinion  is  based  entirely  upon  my  first  impressions,  without  any 
study  of  the  law  of  the  cases  bearing  on  the  subjects. 

1st:  It  is  my  opinion  that  there  are  constitutional  objections  to  an 
enactment  by  the  Legislature  providing  that  each  employer  in  this  State 
shall  be  directly  liable  to  compensate  each  employe  injured  in  his  employ- 
ment, without  regard  to  the  question  of  fault  on  the  part  of  the  employe, 
even  though  the  amount  of  compensation  be  limited. 

2nd :  While  I  do  not  feel  at  all  certain  that  an  enactment  by  the  Legis- 
lature providing  that  an  employer  in  hazardous  trades  shall  be  liable  to 
compensate  each  employe  injured  would  be  free  from  constitutional  objections, 
I  am  inclined  to  believe  that  such  a  law  could  be  so  drafted  as  to  make  it 
constitutional,  if  confined  to  hazardous  trades.  It  seems  to  me  that  such 
a  regulation  would  fall  within  the  police  powers,  for  certainly  the  preserva- 
tion of  the  health  and  life  of  the  community  is  one  in  which  society  is 
interested,  and  consequently  the  Legislature  has  power  to  regulate  it. 

3rd:  This  question  depends  largely  upon  the  answers  to  questions  1  and 
2,  and  if  the  Legislature  has  power  to  enact  a  law  such  as  suggested  in 
question  2  (and  I  am  inclined  to  the  opinion  that  they  have),  then,  of 
course,  they  would  have  the  right  to  provide  that  such  remedies  should  be 
exclusive  of  all  common  law  or  statutory  rights  of  the  injured  employes  or 
their  dependents  to  resort  to  the  courts  of  law  for  compensation. 

4th :  I  am  of  the  opinion  that  a  statute  could  be  enacted  authorizing 
employers  and  employes  to  contract  with  regard  to  the  responsibility  for 
negligence  before  any  such  causes  for  action  shall  arise. 

5th :  I  am  of  the  opinion  that  the  amount  of  compensation  to  be  received 
for  an  injury  can  be  fixed  by  statutory  enactment,  but  I  do  not  think  the 
right  of  trial  by  jury  can  be  taken  away  from  either  the  employer  or  em- 
ploye upon  the  question  of  liability. 

6th:  I  am  of  the  opinion  that  the  State,  through  its  Legislature,  can 
abolish  the  defenses  of  fellow-servant  and  assumption  of  risk,  and  can  limit 
the  defense  of  contributory  negligence,  but  cannot  absolutely  abolish  the 
defense  of  contributory  negligence. 

I  fear  that  these  suggestions  are  of  but  little  or  no  value  to  you  or  the 
Commission,  as  I  have  not  had  time  to  investigate  the  law.  There  can  be 
no  doubt  about  the  wisdom  of  legislation  of  the  kind  proposed,  if  It  can  be 
had,  and  if  at  any  time  In  the  future  I  can  be  of  any  service  to  the  Com- 


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EMPLOYERS'  LIABILITY  COMMISSION  105 

mission  in  helping  along  this  work,  I  shall  be  glad  to  do  anything  within  my 
power. 

Last  winter  a  Mr.  J.  Francis  Dainmann,  Jr.,  409  New  York  Life  Build- 
ing, read  before  the  Legal  Club  of  Chicago,  a  very  excellent  paper  on  Co- 
operative Insurance  Legislation,  and  in  the  discussion  of  this  question  he 
dealt  to  some  extent  with  the  questions  suggested  in  your  letter.  If  you 
have  not  already  done  so,  and  it  is  not  too  late  I  would  suggest  that  you 
ask  him  for  an  opinion  on  these  propositions.  I  believe  Mr.  Dammann  is 
connected  with  some  casualty  insurance  company,  but  I  am  quite  sure  that 
he  has  given  this  subject  considerable  thought  and  examination. 

Yours  very  truly, 

W.  T.  ALDEN. 


Mr.  Samuel  A.  Harper,  Rockford,  111.,  June  14,  1910. 

Chicago. 

My  Dear  Sir:— 

I  regret  I  have  been  unable  to  give  my  opinion  to  questions  set  forth 
in  yours  of  the  4th  instant.  My  clerk,  who  is  also  my  stenographer,  has 
been  absent  since  its  receipt  and  will  not  return  until  tomorrow  night.  The 
absence  has  entailed  detail  work  on  myself,  and  to  work  out  an  opinion 
with  a  stenographer  unfamiliar  to  me  would  take  more  time,  and  possibly 
patience,  than  I  have  had  to  give. 

I  would  not  desire  a  statute  passed  such  as  contemplated  in  question  1. 
Without  regard  to  the  constitutionality  of  such  a  statute,  as  a  people  are  we 
not  drifting  too  much  toward  governmental  paternalism?  There  are  too 
many  academic  writers,  who,  if  they  had  a  dollar,  would  not  invest  it  in 
the  employment  of  laborers,  except  servants  of  the  house  and  person. 

The  public  direct  their  thoughts  too  much  toward  the  great  industrial 
concerns  and  the  railroads  and  forget  the  great  body  of  small  establishments 
that  are  the  industrial  life  of  a  great  many  communities. 

I  think  I  never  knew  a  new  manufacturing  business  to  start  with 
sufficient  capital  to  be  comfortable,  and  especially  so  if  it  grew  from  the 
start.  If  to  the  business  risk,  which  is  fairly  well  known,  is  added  an 
employers'  liability  risk  without  regard  to  negligence,  do  you  think  capital 
will  seek  manufacturing  investments? 

When  I  speak  of  capital  I  mean  such  capital  as  we  have  here,  and  I 
think  we  afford  a  fair  sample  of  an  industrial  center,  free  from  trust  domina- 
tion, with  the  abuses  charged  against  it. 

Pardon  this  long,  easy  hand  letter.  I  had  no  intention  of  more  than 
acknowledging  the  courtesy  of  asking  for  my  opinion  and  explaining  why 
it  was  not  given.  I  am,  yours  respectfully, 

A.  D.  EARLY. 


106 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION  107 

Mr.  Samuel  A.  Harper,  june  13,  1910. 

Chicago,  111. 
Dear  Sir  :— 

I  have  the  honor  to  acknowledge  receipt  of  your  letter  of  4th  instant 
asking  my  opinion  on  six  questions,  or  points,  mentioned  by  you,  relative 
to  legislation  under  consideration  by  the  Employers'  Liability  Commission 
of  this  State. 

I  will  reply  to  the  questions,  in  the  order  in  which  they  are  found  in  your 
letter,  and  by  number,  without  here  reproducing  them. 

1st:  I  do  not  see  why  a  statute  carefully  drawn,  with  proper  safe- 
guards, for  compensation  to  injured  employes,  should  be  unconstitutional; 
and  I  believe  a  statute  of  this  character  may  be  enacted  that  would  be 
free  from  constitutional  objections. 

2nd:  I  do  not  believe  it  necessary  to  limit  the  operation  of  such  a 
statute  to  what  are  known  as  hazardous  trades,  in  order  to  make  it  consti- 
tutional. 

3rd:  If  I  am  right  in  the  two  preceding  answers,  then  there  can  be  no 
constitutional  objection  to  providing  that  the  rights  and  compensation  given 
and  secured  under  such  a  statute  shall  be  exclusive  of  all  other  rights  of 
damages  and  compensation. 

4th:  I  do  not  believe  there  is  any  constitutional  objection  to  providing 
by  statute  that  employers  and  employes  may  contract  with  respect  to  re- 
sponsibility, for  negligence,  but  think  such  legislation  would  be  unwise. 
Such  a  provision  in  the  law  would  give  an  opportunity  for  the  employer  of 
labor  to  take  advantage  of  the  necessities  of  men  out  of  employment. 

5th :  The  right  of  trial  by  jury  should  not  be  taken  away  in  such  cases. 
Whether  it  might  constitutionally  be  taken  away  is  a  grave  question.  I  am 
inclined  to  the  opinion  that  a  statute  providing  for  compensation  to  take 
the  place  of  present  common  law  and  statutory  rights,  with  a  provision 
depriving  the  parties  of  trial  by  jury,  would  be  unconstitutional — that  is, 
the  provision  taking  away  trial  by  jury  would  be  unconstitutional.  And  I 
am  of  the  opinion  that  a  provision  for  compulsory  arbitration  in  such  cases 
would  also  be  unconstitutional. 

6th :  It  is  my  opinion  that  the  defenses  of  fellow-servant  and  assumed 
risk  may  be  abolished,  or  so  limited  that  the  evils  now  resulting  from  them 
may  be  largely  eliminated;  and  it  is  also  my  opinion  that  the  defense  of 
contributory  negligence  can,  and  should,  be  practically  abolished,  at  least 
in  a  majority  of  cases. 

I  have  intentionally  avoided  detail,  in  my  answers,  and  have  generally 
omitted  giving  an  opinion  as  to  mere  policy.  Of  course,  you  will  understand 
that  much  time  and  study  would  be  required  to  give  details  and  state  what, 
in  my  opinion,  should  be  the  character  of  the  statutory  provisions,  for  com- 
pensation for  injuries  to  employes.  So  much  time  and  study  would  be 
required  that  it  could  not  be  bestowed  in  the  few  days  intervening  receipt 
of  your  letter  and  the  15th  of  June — the  day  named  by  which  you  want  the 
reply.  Respectfully, 

J.  M.  RIQGS. 


108 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION  109 

June  11,  1910. 
Mr.  Edwin  R.  Wright,  Secretary  Employers'  Liability  Commission, 

317  Fisher  Building,  Chicago. 
Dear  Sir: — 

I  am  in  receipt  of  your  communication  of  the  7th  instant,  requesting  In 
behalf  of  the  Employers'  Liability  Commission  an  opinion  as  to  the  consti- 
tutionality of  certain  suggested  changes  in  the  law  of  this  State  in  respect 
to  employers'  liability. 

The  subject  of  your  inquiry  is  of  the  greatest  importance,  not  only  to 
the  employers  of  labor  and  employes  who  will  be  immediately  affected  by 
the  suggested  changes  in  the  existing  law,  but  to  the  entire  public,  and  more 
particularly  to  judges,  lawyers  and  litigants  in  general.  The  present  con- 
gested condition  of  the  court  calendars  is  due  largely,  I  believe,  to  the  great 
number  of  suits  brought  for  personal  injury.  I  therefore  feel  that  you  are 
entitled  to  call  for  opinions  from  the  members  of  the  Bar.  I  should  cheer- 
fully devote  the  time  to  an  examination  of  the  authorities  requisite  for  the 
preparation  of  an  opinion  in  answer  to  your  questions,  if  the  time  now  at 
my  disposal  permitted.  As  an  evidence  of  my  interest  in  the  work  of  your 
Commission,  I  submit  the  following  answers,  with  little  discussion  of  authori- 
ties: 

1.  A  statute  framed  on  the  lines  covered  by  your  first  question  would, 
in  my  judgment,  be  unconstitutional.    It  offends  against  the  provision  of  the 
fourteenth  amendment  of  the  Constitution  of  the  United  States,  and  if  I 
understand  your  question,   there  is  no  principle  of  law  upon  which   it  is 
sustainable.     The  employer  is  made  liable  without  regard  to  the  nature  of 
the  business  in  which  he  is  engaged,  and  without  reference  to  whether  or 
not  he  has  been  negligent  in  the  slightest  degree.     He  becomes  an  insurer 
of  all  his  employes.     I  do  not  believe  that  there  is  an  analogy  between  the 
European  laws  referred  to  in  your  communication,  and  similar  laws  in  the 
United  States  where  it  is  necessary  to  meet  both  Federal  and  State  consti- 
tutions. 

2.  A  statute  limited  in  its  application  to  employes  in  those  trades  which 
are  known  to  the  law  as  hazardous  would  be  constitutional  in  my  opinion,  if 
the  liability  of  the  employer  was  thereby  made  to  rest  upon  his  negligence, 
whether  such  negligence  was  a  result  of  defects  in  the  premises  devoted  to 
his  business,  or  in  appliances  or  equipment  used,  or  the  result  of  the  negli- 
gence of  fellow  servants.    Nor  would  the  constitutionality  of  such  an  act  be 
affected  if  the  right  of  recovery  was  given  to  the  employe,  even  in  the  event 
that  the  latter  was  guilty  of  contributory  negligence.    The  arguments  against 
legislation  of  this  character  is  based  upon  the  principal  that  each  individual 
is  responsible  for  his  own  acts,  and  there  is  no  general  rule  of  law  making 
one  man  liable  for  the  negligence  of  another,  and  that  the  rule  that  the 
master  must  answer  for  the  act  of  his  servant  where  strangers  are  injured 
is  an  exception  to  the  general  rule. 

It  is  perfectly  apparent  that  as  civilization  advances,  the  various  indus- 
tries carried  on  by  man  change.  The  introduction  of  machinery,  electricity 
and  steam,  and  the  attendant  growth  of  manufacturing  have  made  the  con- 
ditions under  which  men  labor  much  more  complicated  and  dangerous. 
These  conditions  under  which  work  is  now  carried  on  in  factories  and 


110  EMPLOYERS'  LIABILITY  COMMISSION 

similar  establishments  has  resulted  annually  in  a  large  number  of  deatl 
and  accidents,  and  the  impairment  of  the  health  of  many  persons,  resultii 
from  "occupational  disease." 

It  is  the  boast  of  the  police  power  that  it  is  capable  of  adaptation 
new  circumstances  and  conditions,  however  complex.  The  chief  virtue  of  thj 
power,  which  has  sometimes  been  criticized  as  a  vice,  is  that  its  precis 
limits  are  incapable  of  definition.  It  is  well  termed  the  law  of  overruling 
necessity. 

But,  returning  to  your  second  question,  would  a  statute  be  constitutions 
which  imposed  upon  the  employers  of  labor,  if  they  were  guilty  of  no  negli- 
gence— liability  for  injury  to  their  employes,  caused  by  the  negligence  of  th< 
latter.     In  short,  can  the  master  engaged  in  a  dangerous  enterprise  be  sul 
jected,  without  doing  violence  to  constitutional  principles,  to  the  assumptioi 
of  all  the  risks  of  his  business,  including  the  risk  of  self-injury  by  his  serv- 
ants, caused  by  their  own  neglect?    It  is  true  that  in  all  constructive  legisla- 
tion, some  speculation  is  necessary  and  may  be  indulged  in,  but  to  affiri 
in  the  present  state  of  the  law  that  so  drastic  a  statute  of  general  applicatioi 
is   constitutional,  certainly  seems  too  radical   a   declaration.     It  verges  on 
speculation  pure  and  simple. 

The  courts  have  long  sustained  many  kinds  of  laws  requiring  the  in- 
stallation of  various  devices  intended  to  safeguard  the  servant,  and  it  might 
even  be  said,  to  protect  him  from  his  own  negligence,  as  much  as  to  render 
the  implements  with  which  he  works  safe. 

The  Supreme  Courts  of  Minnesota  and  Mississippi,  in  upholding  the 
constitutionality  of  laws  requiring  that  operators  of  street  cars  be  protected 
by  enclosed  platforms  or  shields,  have  recognized  that  exposure  to  severe 
weather  conditions  may  incapacitate  such  employes  for  the  proper  per- 
formance of  their  duties.  These  decisions,  it  is  true,  rest  upon  the  proposi- 
tion that  the  public  is  interested  in  the  health  of  the  motorman,  because 
passengers  upon  street  cars  may  be  exposed  to  danger  if  he  becomes  be- 
numbed with  the  cold,  but  those  decisions  and  many  others  that  might  be 
alluded  to,  recognize  that  those  working  in  certain  lines  of  industrial  activity,, 
because  of  the  dangerous  nature  of  their  employment,  require  protection 
against  acts  or  omissions  of  duty,  which  if  done  or  omitted  to  be  done  in 
a  less  hazardous  employment,  would  be  inexcusable  carelessness. 

I  conclude  that  such  a  law  as  is  suggested,  which  requires  the  employer 
to  assume  all  the  risks  of  his  business,  if  it  covers  a  sufficiently  narrow  field 
of  trades,  would  be  valid;  for  instance,  to  take  a  striking  example,  is  not 
the  manufacturing  and  storing  of  gunpowder  a  trade  so  dangerous  and  the 
results  of  the  slightest  fault  of  any  person  engaged  in  it  so  frightful  and 
so  far  reaching,  that  the  employer  might  be  compelled  by  law  to  assume  all 
the  risks  of  the  business  and  become  the  insurer  of  everybody  against  the 
negligence  of  anybody  else,  including  that  of  any  of  his  employes? 

3.  A  statute  drafted  on  the  broad  lines  indicated  in  your  third  ques- 
tion, would  likewise  be  unconstitutional  in  my  judgment. 

4.  A  statute  authorizing  employers  and  employes  to  contract  with  re- 
gard to  responsibility  for  negligence  before  a  cause  of  action  arose,  would 
not,  in  my  opinion,  be  constitutional. 


EMPLOYERS'  LIABILITY  COMMISSION  111 

5.  I  think  your  fifth  question  should  be  answered  in  the  negative.     A 
discussion  of  it  within  the  limits  of  a  mere  letter  is  out  of  the  question. 

6.  I  believe  both  the  defenses  of  fellow-servant  and  assumption  of  risk 
may  be  abolished  by  statute,  and  that  the  defense  of  contributory  negligence 
may  certainly  be  limited  by  statute,  and  may  even  be  abolished  in  the  case 
of  employes  engaged  in  the  exceedingly  hazardous  employments  hereinbefore 
referred  to.     The  reasoning  in  Farwell  vs.  Boston  &  Worcester  R.  R.  cop- 
poration,  4  Metcalf,  49,  the  leading  authority  in  support  of  the  defenses  of 
assumption  of  risk  and  fellow-servant,  hardly  applies  to  the  conditions  of 
today.     It  is  no  longer  true  that  the  servant  is  as  likely  as  the  master  to 
know  the  perils  of  the  employment  in  which  he  engages,  or  that  he  can  as 
effectually  guard  against  them  as  the  master. 

As  stated  by  your  attorney,  Mr.  Harper,  in  his  communication,  the  legal 
questions  presented  are  of  the  greatest  difficulty,  and  this  becomes  more 
apparent  when  we  look  at  the  recent  decisions  of  the  Supreme  Court  of  this 
State.  The  case  of  People  vs.  Steele,  decided  in  231  Illinois,  indicated  a 
disposition  to  narrow  the  limits  of  the  police  power  and  may  be  considered 
a  step  backward  by  our  court,  while  in  the  recent  Ritchie  case  is  observed  a 
contrary  tendency,  all  the  more  marked  in  that  it  involved,  if  not  the  abandon- 
ment of,  at  least  a  departure  from  the  old  case  of  Ritchie  vs.  People,  dealing 
with  substantially  the  same  questions  as  to  the  right  of  the  State  to  limit 
the  working  hours  of  women. 

Yours  very  truly, 

MACLAY  HOYNE. 


June  14,  1910. 
Mr.  Samuel  A.  Harper, 

714  Hartford  Building,  Chicago,  111. 
Dear  Sir:— 

Your  favor  of  the  14th  inst,  on  behalf  of  the  Employers'  Liability  Com- 
mission of  the  State  of  Illinois,  asking  my  opinion  whether  there  are  con- 
stitutional objections  to  proposed  statutes,  etc.,  is  at  hand. 

I  am  very  much  in  sympathy  with  this  movement  and  realize  that  some 
method  ought  to  be  devised  to  do  away  with  the  large  number  of  personal 
injury  suits  now  incumbering  the  courts  of  the  State,  and  to  provide  a  more 
Just  system  to  both  employers  and  employes. 

The  propositions  you  submit,  however,  involve  careful  consideration  and 
study  of  constitutional  questions.  I  have  not  had  the  time  to  investigate 
and  study  those  questions  as  I  should  wish,  to  give  an  opinion  which  I  would 
regard  of  any  considerable  value.  It  would  seem  to  me,  however,  from  a 
casual  consideration  that  a  law  such  as  suggested  by  the  first  two  proposi- 
tions would  be  unconstitutional,  in  that  it  would  take  away  property  without 
due  process  of  law,  by  placing  a  liability  upon  the  employer  for  an  injury 
caused  without  his  fault.  The  third  proposition  would  be  subject  to  the 
same  constitutional  objection,  in  that  it  deprives  the  parties  of  the  freedom 
of  contract  and  undertakes  to  make  a  contract  for  them.  I  see  no  objection 
to  a  statute  authorizing  employers  and  employes  to  contract  in  advance  with 
regard  to  responsibility  for  negligence,  so  long  as  it  does  not  protect  the 


112  EMPLOYERS'  LIABILITY  COMMISSION 

employer  from  liability  for  his  negligence.  I  do  not  see  how  the  right  of 
trial  by  jury  can  be  taken  away  from  either  the  employer  or  employe  upon 
either  the  question  of  liability  or  the  amount  of  compensation,  so  long  as 
the  Federal  Constitution  remains  what  it  now  is.  These  questions,  as  a 
matter  of  course,  may  be  determined  by  arbitration,  which  necessarily  as- 
sumes that  both  parties  agree  to  it.  I  should  think  that  the  defense  of 
fellow-servant  might  be  abolished  by  statute,  and  perhaps  the  defense  of 
assumption  of  risk,  although  of  this  I  have  grave  doubt.  I  do  not  believe 
that  the  defense  of  contributory  negligence  can  be  lawfully  abolished  by 
statute,  for  the  reason  that  the  effect  of  such  a  statute  would  be  to  place 
a  liability  upon  the  employer  for  an  injury  which  would  not  have  occurred 
but  for  negligence  of  the  employe. 

These  views  are  arrived  at  by  a  hurried  consideration  of  the  questions, 
without  such  an  investigation  or  study  as  I  should  desire  to  give  the  subjects 
in  order  to  render  an  opinion  which  I  should  be  willing  to  stand  by. 

Very  truly  yours, 

ALMON  W.  BULKLEY. 


June  9,  1910. 
Samuel  A.  Harper,  Esq. 
Dear  Sir:— 

Your  letter  of  June  7th,  1910,  presents  to  me  very  important  questions 
which,  in  case  of  legislation  regarding  industrial  accidents,  I  may  be  called 
upon  to  decide  in  court,  therefore  it  seems  to  me  I  should  only  say  that,  in 
my  opinion,  there  should  be  legislation  which  would  provide  an  "equitable 
and  effectual  method  of  providing  for  compensation  for  losses  suffered"  in 
the  line  you  have  indicated,  and  that  I  should  express  no  opinion  as  to  the 
validity  of  such  law  until  I  have  heard  arguments  of  counsel  in  an  actual  case 
in  court.  Yours  respectfully, 

THOMAS  G.  WINDES. 


June  9,  1910. 
Samuel  A.  Harper,  Esquire,  Attorney  Employers'  Liability  Commission. 

Hartford  Building,  Chicago. 
Dear  Sir:— 

I  have  your  favor  of  7th  asking  my  opinion  as  to  whether  there  are 
constitutional  objections  to  the  enactment  by  the  Legislature  of  this  State 
of  proposed  statutes  as  follows: 

1.  A  statute  providing  that  each  employer  shall  be  liable  to  each  em- 
ploye injured  in  his  employment,  without  regard  to  the  question  of  fault  on 
the  part  of  the  employer,  where  the  injury  was  not  intentionally  caused  by 
the  employe  himself? 

I  give  the  question  as  I  understand  it  and  not  as  it  is  literally. 

In  my  opinion  such  a  statute  would  not  be  admissible.  To  hold  an 
employer  liable  for  an  accidental  injury  to  his  employe,  without  any  fault 
on  the  part  of  the  employer  or  neglect  of  duty,  would  seem  to  me,  in  effect, 
to  deprive  the  employer  of  property  without  due  process  of  law. 


EMPLOYERS'  LIABILITY  COMMISSION  113 

2.  Should  such  a  compensation  law  be  limited  to  employes  in  hazardous 
trades  only,  in  order  to  make  it  constitutional? 

I  am  inclined  to  think  a  law  could  be  drawn  on  these  lines  which  our 
Supreme  Court  would  sustain  as  a  legitimate  exercise  of  the  police  power. 
The  question  is  a  doubtful  one,  and  to  answer  it  affirmatively  pre-supposes 
some  effect  on  the  course  of  decisions  of  the  tendency  of  modern  thought 
on  these  subjects.  I  also  think  legislative  power  in  this  regard  is  more 
extensive  over  corporations  than  over  individuals. 

3.  A  statute  of  the  same  purport  as  stated  in  question  No.  1,  which 
shall  also  provide  that  the  rights  given  thereunder  shall  be  exclusive  of  all 
common  law  or  statutory  rights  of  injured  employes  or  their  dependents  to 
resort  to  the  courts  of  law  for  compensation? 

My  answer  to  this  would  be,  having  regard  to  the  opinion  already  ex- 
pressed against  the  validity  of  such  a  statute  as  is  referred  to  in  question 
No.  1,  that  a  statute  such  as  suggested  by  question  No.  2  might  properly 
exclude  all  other  remedies  for  such  injury. 

4.  A  statute  authorizing  employers  and  employes  to  contract  with  re- 
gard to  responsibility  for  negligence  before  any  such  cause  for  action  shall 
arise? 

It  would  seem  to  me  plain  that  it  would  be  competent  for  the  Legisla- 
ture to  pass  such  a  statute. 

5.  May  the  right  of  trial  by  jury  be  taken  way  from  either  the  em- 
ployer or  employe  upon  the  question  of  liability,  or  the  amount  of  compen- 
sation to  be  received,-  or  may  one  or  both  of  these  questions  be  determined 
by  arbitration? 

I  answer  this  question  in  the  negative.  It  would  be  possible,  however, 
to  provide  that  damages  for  injury  should,  in  the  first  instance,  be  ascer- 
tained by  a  Commission,  with  right  of  appeal  from  the  finding  of  the  Com- 
mission to  the  Circuit  Court. 

6.  Can  we  abolish  the  defenses  of  fellow  servant,  and  assumption  of 
risk,  and  limit  or  abolish  the  defense  of  contributory  negligence? 

I  see  no  reason  to  doubt  that  such  a  statute  would  be  entirely  con- 
stitutional. 

I  have  given  you  my  views  promptly,  as  requested,  and  with  prac- 
tically no  investigation  and  but  little  present  consideration.  The  weight 
that  should  be  given  to  any  such  opinion  is,  of  course,  but  little,  but  such 
as  it  is  I  am  glad  to  give  it  to  the  Commission. 

Yours  truly, 

S.  S.  GBEGOBY. 


Mr.  Samuel  A.  Harper,  June  10,  1910. 

714  Hartford  Building,  City. 
My  Dear  Sir: — 

Answering  yours  of  the  7th  inst,  and  speaking  from  my  personal  knowl- 
edge of  the  subject  (having  for  years  given^  instruction  in  torts  and  consti- 
tutional limitations  upon  legislative  authority),  but  without  special  inves- 
tigation of  the  authorities,  I  beg  leave  to  state: 

1.  That  I  see  no  constitutional  objection  to  the  legislation  stated  in 
inquiry  No.  1.  It  seems  to  me  to  be  within  the  police  powers  of  the  State. 


114  EMPLOYERS'  LIABILITY  COMMISSION 

2.  I  see  no  objection  to  such  legislation  extending  to  other  than  has 
ardous  trades. 

3.  If  the  legislation  is  constitutional,  as  I  think  it  is,  the  legislatk 
may,  in  my  opinion,  be  made  exclusive  of  the  common  law  and  statutoi 
rights  now  existing. 

4.  This  is  open  to  more  question,  as  it  seems  to  me,  as  tending  to 
against  public  policy;  but  I  see  no  objection  to  its  constitutionality. 

5.  I  do  not  think  that  the  ultimate  right  of  trial  by  jury  can  urn 
the  constitution  be  taken  away;   but  it  seems  to  me  that  arbitration  may 
be  authorized,  and  an  attempt  to  arbitrate  be  made  a  condition  precedent. 

6.  Yes,  in  my  opinion,  there  can  be  no  doubt  of  this  proposition. 
Respectfully  submitted.  Yours  truly,  M.  D.   EWELL. 


Mr.  Samuel  A.  Harper,  June  8,  1910. 

714  Hartford  Bldg.,  Chicago,  111. 
Dear  Sir: — 

Your  communication  of  June  4  was  duly  received  and  I  laid  it  aside 
until  I  could  have  time  to  take  it  up  carefully,  and  now  answer  your 
questions. 

As  to  the  first  question  propounded:  I  think  that  such  a  statute  as 
mentioned  is  constitutional  and  would  be  so  held  by  the  Courts,  with  the 
provision,  however,  as  suggested  in  the  second  question  that  it  would  be 
limited  to  employes  in  hazardous  trades  only.  I  feel  no  hesitancy  in  my 
own  opinion  but  what  such  a  statute  would  be  sustained  by  the  Courts 
as  constitutional. 

The  Legislature  may  pass  laws  sustaining  the  police  power  of  the  State 
and  the  public  health  and  security  of  its  people. 

As  to  the  third  proposition:  I  do  not  feel  that  it  is  clear  as  stated 
in  the  question.  It  seems  to  me  that  there  is  a  little  confusion  in  saying 
that  the  rights  shall  "be  exclusive  of  all  common  law  or  statutory  rights 
of  injured  employes  .or  their  dependents  to  resort  to  the  Courts  of  law 
for  compensation."  By  striking  off  the  latter  words  "by  Courts  of  law  for 
compensation"  I  think  the  statute  would  be  good.  Perhaps  I  do  not  under- 
stand the  question,  however,  and  it  is  only  intended  to  say  that  they  should 
have  no  other  rights  of  recovery  except  as  provided  by  the  statute  and  I 
think  in  that  sense  it  could  be  sustained. 

The  confusion  to  me  seems  to  be  that  it  might  be  said  from  the  ques- 
tion that  they  could  not  resort  to  the  courts  of  law  for  compensation, 
but  I  presume  that  was  not  intended  to  cut  off  the  resort  to  courts  of  law. 

As  to  the  fourth  question :  I  feel  some  doubts  about  the  validity  of  such 
a  statute;  unquestionably  I  feel  doubts  as  to  the  wisdom  of  it  for  the 
employe.  I  do  not  think  that  there  should  be  any  statute  allowing  the 
employer  and  employe  to  make  a  contract  that  would  relieve  the  employer 
of  his  liability  for  injury  to  tbe  employe.  I  think  the  statute  prohibiting 
such  a  contract  would  be  valid  and  constitutional. 

As  to  the  fifth  question  I  answer  in  the  negative.  I  do  not  think  that 
any  statute  would  be  upheld  that  took  away  the  right  of  trial  by  jury 
or  that  enforced  arbitration  without  the  consent  of  one  of  the  parties. 

Yours  truly,  I.   N.  BASSETT. 


EMPLOYERS'  LIABILITY  COMMISSION  115 

Mr.  S.  A.  Harper,  140  Dearborn  Street,  Aug.  30,  1910. 

Chicago,  111. 
My  Dear  Mr.  Harper: 

When  you  were  in  Peoria  I  told  you  I  would  look  over  the  Brief  filed  by 
you  for  the  use  of  the  Employers'  Liability  Commission,  and  write  you.  I  have 
been  through  the  Brief  with  a  good  deal  of  interest,  and  think  you  have  pre- 
sented the  matter  in  all  its  phases  for  the  use  of  the  Commission. 

There  can  be  no  possible  doubt  of  the  right  of  the  legislature  to  pass  upon 
this  question  and  the  form  adopted  by  the  Commission  of  an  elective  bill,  while 
practically  coercive,  is  the  proper  form,  and  is  fair  to  both  employers  and 
employes.  Of  course,  I  said  the  most  I  have  to  say  on  the  different  phases 
of  the  bill  when  the  Commission  was  in  Peoria.  Those  remarks  were  the  result 
of  impressions  formed  from  time  to  time  in  cases  of  litigation  by  employes 
against  employers.  There  is  one  thing  that  the  Commission  should  bear  in 
mind  at  the  present  time  in  formulating  such  a  law,  and  that  is  the  impossi- 
bility of  the  employers,  especially  railroads  and  large  manufacturing  industries, 
being  absolutely  free  to  employ  only  competent  men  and  women  and  to  dis- 
charge the  incompetent.  It  is  impossible  to  change  conditions  as  they  exist 
now  with  reference  to  organized  labor,  but  in  the  framing  of  a  bill  it  should  be 
borne  in  mind  that  employers  are  now  practically  forced  to  accept  and  retain 
the  services  of  incompetent  persons  whom  the  employers  would  not  engage  if 
entirely  free  to  act.  I  merely  mention  this  as  one  circumstance  that  should  be 
considered  in  favor  of  placing  the  employer  on  an  absolute  equality  with  the 
employe. 

I  think  your  argument  from  analogy  in  favor  of  the  right  of  the  legislature 
is  absolutely  unanswerable.  There  can  be  no  reasonable  doubt  of  the  power, 
and  I  have  been  interested  in  your  selection  of  instances  sustaining  the  power 
of  the  legislature  to  enact  the  right  kind  of  a  law.  There  are  some  branches 
of  business,  and  some  railroad  companies,  that  will  be  put  to  greater  expense 
and  outlay  under  the  proposed  Liability  Act  than  under  their  present  system 
of  adjusting  matters  with  their  employes,  where  injuries  occur,  but  I  believe 
in  the  general  round-up  it  will  be  infinitely  better  for  both  employers  and 
employes  to  know  what  they  have  to  expect  and  provide  for  it.  There  can  be 
no  law  passed  that  does  not  work  a  hardship  in  some  particular  instances  at 
some  time.  The  only  consideration  should  be  to  make  the  law  of  the  greatest 
benefit  to  the  greatest  number.  It  would  be  obviously  unfair  to  tie  the  hands 
of  employers  in  their  defense  and  at  the  same  time  provide  for  the  benefit  of 
the  employe.  All  of  those  things  should  be  mutual  and  there  must  be  mutual 
concessions  on  the  part  of  employers  and  employes.  The  bill — an  outline  of 
which  was  presented— with  the  exception  of  some  matters  that  I  pointed  out 
to  the  Commission  in  Peoria,  seems  to  me  to  be  eminently  fair.  I  would  do 
away  with  all  questions  of  comparative  negligence,  so  as  to  properly  define 
negligence  as  "being  such  a  lack  of  care  as  an  ordinarily  prudent  person  would, 
under  the  circumstances,  exercise  for  his  safety."  Whenever  you  go  beyond 
this  it  is  criminal  negligence  or  willfulness.  Should  you  adopt  the  idea  of 
comparative,  you  would  have  "positive,"  "comparative"  and  "superlative." 
There  is  no  logic  in  this,  either  in  language  or  law. 

I  would  also  define  permanent  injury  as  one  that  deprived  the  individual 
from  making  his  living  in  his  usual  line  of  employment — that  for  which  he  has 


116  EMPLOYERS'  LIABILITY  COMMISSION 

fitted  himself.  That  is  certainly  a  permanent  disability  and  should  be  com- 
pensated for  as  such,  although  in  exceptional  cases  some  men  might  ent 
some  other  field  and  prosper  pecuniarily  better  in  the  long  run,  but  it  is 
enforced  change,  and  provision  should  be  made  for  such  party  as  one  perma- 
nently injured. 

One  of  the  most  cogent  reasons  for  the  passage  of  an  appropriate  law 
that  hundreds  deserving  would  receive  compensation  who  are  now  deprive 
of  it;  others  might  not  receive  as  much  as  could  be  recovered  by  litigatioi 
but  the  greatest  good  would  undoubtedly  accrue  to  the  largest  number.  An- 
other thing,  all  the  compensation  paid  by  the  employer  would  go  to  the  injured 
party.  The  middle  man  in  our  profession  who  now  reaps  from  one-third 
one-half  the  benefit  of  litigated  cases  would  be  entirely  eliminated  and  the 
ambulance  chasers  would  be  out  of  business.  There  is  another  thing  not  very 
potential,  but  still  of  value  to  our  profession  as  such.  We  remove  the  tempta- 
tion from  lawyers  anxious  for  money  and  weak  in  morals  to  take  the  cases 
and  furnish  a  large  part  of  the  evidence.  Every  man  who  has  been  in  the 
business  as  long  as  I  have  and  defended  as  many  cases  of  all  kinds  in  the 
city  and  in  country  places  has  been  up  against  the  dangers  of  that  kind  of 
practice — perfectly  apparent  and  yet  difficult  of  proof.  We  would  save  our 
profession  from  the  temptation  to  depart  from  the  strict  line  of  professional 
duty.  Of  course  I  am  near  the  end  of  my  professional  life  and  these  things 
cannot  make  so  much  difference  to  me  personally  as  to  my  younger  brethren  in 
the  profession  but  I  would  like  to  see  the  time  come  when  higher  ideals  prevail 
on  the  part  of  all,  and  I  think  that  it  is  the  duty  of  the  profession  to  remove 
just  as  far  as  possible  all  temptation  of  lawyers  to  depart  from  the  strict  rules 
of  moral  and  professional  rectitude. 

I  would  make  the  law  applicable  to  all  classes  of  employes — domestic  and 
otherwise.  There  is  no  reason  why  girls  and  women  working  in  mercantile 
houses  or  in  the  kitchen  should  not  be  provided  for  the  same  as  any  others. 
They  are  liable  to  accidents  and  injuries,  and  they  should  have  the  same  right 
to  compensation  as  those  who  are  engaged  in  more  hazardous  employments. 
The  bill  should  be  equitable  and  just,  and  apply  to  all  alike.  In  that  it  would 
not  be  open  to  the  constitutional  inhibition  against  class  legislation. 

I  did  not  intend  to  say  as  much  as  I  have,  only  to  give  you  my  ideas  of 
the  unanswerable  character  of  your  argument.  It  is  admirably  presented,  in 
plain  language,  and  can  be  easily  understood  by  all  laymen  as  well  as  pro- 
fessionals. Yours  very  truly,  J.  S.  STEVENS. 

Letters  were  also  received  from  the  following: 

Fred  H.  Hand,  Cambridge. 

John  L.  Fogle,  Chicago. 

Clarence  A.  Knight,  Chicago. 

Horatio  L.  Wait,  Chicago. 

Edgar  B.  Tolman,  Chicago. 

The  judges  of  the  Courts  generally  refrained  from  expressing  an  opinion 
on  the  particular  questions  embraced  in  the  circular  letter,  for  the  obvious 
reason  that  they  might  be  called  upon  to  pass  upon  the  law  finally  drafted 
by  the  Commission,  and  that  it  would  therefore  be  unwise  to  prejudge  the 
matter.  Several  of  the  judges,  however,  expressed  the  opinion  that  some 
change  in  the  present  law  ought  to  be  made. 


GOAL    MINING 

ODDD 

The  coal  mining  industry  of  Illinois  has  long  been  recognized  as  of  the 
greatest  importance  for  several  reasons,  and  should  be  of  special  concern  to 
the  State. 

ITS   MAGNITUDE. 

It  stands  second  among  the  coal  producing  States  of  the  Union,  with 
an  output  for  the  year  ending  June  30th,  1909,  of  49,163,710  tons.  For 
that  year  it  required  the  labor  of  72,733  men;  some  350,000  people  are 
directly  dependent  upon  it  for  support,  and  entire  communities  in  fifty- 
five  counties  of  the  State  indirectly  so.  It  is  an  important  revenue  pro- 
ducer for  thirty-five  railroads.  There  are  886  operations. 


ITS  RAPID  GROWTH. 

In  1897  the  output  was  20,072,758  tons.  In  1909,  49,163,710  tons,  an 
increase  of  145%  in  thirteen  years.  In  1897,  33,788  men  were  employed. 
In  1909,  72,733  men,  an  increase  in  thirteen  years  of  115%.  In  1897,  69  men 
were  killed.  In  1909,  213  men,  an  increase  of  208%.  In  1897,  292  men  were 
injured  so  as  to  lose  thirty  days  or  more.  In  1909,  894  men,  an  increase 
of  206%. 


ITS    CONTRIBUTION   TO   THE   INDUSTRIAL   AND    COMMERCIAL   IM- 
PORTANCE  OF  THE   STATE. 

It  provides  an  unlimited  supply  of  fuel  at  low  cost  to  every  industrial 
center  in  the  State.  Coal  is  cheaper  in  Chicago  and  St.  Louis  (supplied  by 
Illinois)  than  any  other  great  city  of  the  civilized  world,  with  the  possible 
exception  of  Pittsburgh,  which  fact  contributes  largely  to  their  industrial 
preeminence.  Especially  is  this  the  case  in  the  steel,  railroad  and  Port- 
land Cement  industries,  and  others  in  which  the  item  of  fuel  constitutes 
a  large  proportion  of  the  cost. 


-    STATUS  OF  THE  INDUSTRY. 

Notwithstanding  its  magnitude  and  rapid  development,  indeed  largely 
because  of  the  latter,  the  industry  is  not  prosperous.  Wage  agreements 
are  negotiated  between  organizations  of  employers  and  employes,  respectively, 
which  provide  ample  remuneration  to  the  mine  worker  per  working  day,  yet 


118  EMPLOYERS'  LIABILITY  COMMISSION 

because  of  over  producing  capacity,  the  average  days  of  operation  of  the 
shipping  mines  of  the  State  in  1909  was  but  168,  so  that  the  remuneration 
per  man  per  annum  was  unsatisfactory.  As  a  result,  competition  has  been 
intense  and  the  selling  price  of  coal,  relative  to  cost  of  production,  has 
gradually  but  steadily  declined.  This  over  development  has  been  brought 
about  in  part  by  the  strike  in  the  Anthracite  field  in  1902,  which  created 
an  artificial,  temporary  demand  for  coal  in  the  middle  West,  which  in 
turn  resulted  in  the  opening  of  many  mines  in  Illinois  for  which  there  was 
no  normal  commercial  demand,  and  in  part  to  the  discovery  of  coal  beds 
of  superior  grade  in  a  certain  section  of  the  State,  the  extending  of  various 
railroad  lines  thereto,  and  the  rapid  opening  of  mines  on  the  respective 
lines. 

The  waste  involved  is  enormous.  Capital  is  tied  up  in  mines  for  which 
there  is  no  need;  seventy  thousand  men  are  employed  but  little  more  than 
half  time,  although  fifty  thousand  men  would  amply  suffice  and  be  better 
rewarded  and  twenty  thousand  men  thereby  be  released  to  other  vocations; 
the  cost  of  production  is  materially  increased  by  reason  of  irregular  opera- 
tion of  plants;  the  tendency  to  centralize  ownership  of  mines,  as  the  weaker 
enterprises  are  wrecked,  is  unmistakable;  the  coal  deposits  cannot  be  con- 
served when  the  pressure  to  control  the  cost  of  production  is  so  insistent, 
and  the  physical  condition  of  the  mines,  involving  safety  to  the  employes, 
cannot  be  made  what  it  should  be. 

It  is  not  for  the  Commission  to  propose  a  remedy  for  this  condition,  but 
simply  to  present  the  situation  itself,  as  bearing  upon  the  question  of  em- 
ployers' liability  and  general  compensation  for  industrial  accidents.  One 
remedy  frequently  suggested  is  to  again  legalize  the  reasonable  restraint 
of  trade  permitted  by  the  common  law,  but  now  forbidden  by  statute.  In 
Germany  this  waste  is  prevented  and  the  coal  deposits  and  human  life 
conserved  by  forbidding  the  opening  of  new  mines  without  government 
consent.  It  is  obvious  that  the  existing  condition  serves  no  one.  The  coal 
miner,  the  coal  operator,  the  carrier,  the  industrial  consumer  and  the  gen- 
eral public — all  are  injured.  The  consumer,  though  apparently  the  gainer 
and  at  times  actually  so,  loses  heavily  when  industrial  warfare  exists,  which 
warfare  is  at  times  inevitable  under  existing  conditions.  A  case  well  in 
point  was  the  strike  of  the  coal  miners  extending  from  April  1st  until  Sept. 
8th  of  the  present  year.  Without  attempting  to  go  into  the  merits  of  the 
controversy,  it  is  enough  to  say  that  the  unsatisfactory  annual  earnings  of 
the  miners,  and  the  meagre  returns  of  the  coal  companies,  constitute  the 
condition  making  such  conflicts  of  periodic  recurrence. 


INTERSTATE   COMPETITION. 

The  coal  mining  industry  of  the  State  is  closely  and  directly  competi- 
tive with  that  of  other  coal  producing  States.  With  Indiana  the  competition 
is  especially  close  and  keen*  so  that  the  effect  of  any  increase  in  the  rela- 
tive cost  of  production  in  Illinois  needs  to  be  carefully  considered.  An  im- 
aginary line  only  divides  the  two  States.  The  coal  seams  are  the  same, 


I  EMPLOYERS'  LIABILITY  COMMISSION  119 

mining  conditions  are  alike,  wage  scales  are  similar,  the  principal  markets 
are  common  to  both,  while  the  best  that  can  be  said  of  freight  rates  is  that 
they  are  designed  to  be  competitive. 


ITS  HAZARDS,  INHERENT  AND  OTHERWISE. 

At  the  best,  coal  mining  is  hazardous.  Accidents  are  inevitable  and  the 
trade  risk  is  considerable.  It  need  not,  however,  be  more  hazardous  than 
in  other  states  to  the  east  or  west,  or  than  in  Europe.  The  coal  measures 
are  horizontal.  The  roof  conditions  compare  favorably  with  other  states 
and  with  European  countries.  With  the  exception  of  one  district  of  lim- 
ited size,  gas  is  rarely  found  in  dangerous  quantities.  The  proportion  of 
men  killed,  while  gradually  decreasing  in  Europe,  has  steadily  increased  in 
Illinois  as  well  as  other  states.  In  1909  out  of  each  one  thousand  men  em- 
ployed 2.9  lost  their  lives  in  Illinois,  as  against  1.28  in  Great  Britain,  2.06  in 
Prussia,  1  in  Belgium,  and  0.91  in  France. 

Mining  men  appear  to  agree  that  this  condition  is  due  to  a  combina- 
tion of  causes ;  lack  of  respect  for  law  and  authority ;  non-enforcement  of  law ; 
lax  administration;  lack  of  capital  to  maintain  properties  in  the  best  phys- 
ical condition ;  deteriorating  supply  of  mine  labor ;  the  improper  and  over- 
use of  powder;  the  practice  of  shooting  "off  the  solid"  (forbidden  by  law 
in  Europe),  etc. 

In  Europe  coal  mining  is  almost  an  hereditary  calling,  and  the  coal 
miners  are  homogeneous  and  largely  of  a  single  race  and  language.  In  the 
United  States  they  are  heterogeneous,  of  diverse  races  and  tongues,  and  a 
considerable  proportion  possess  limited  experience  and  skill. 

The  Legislature  has  repeatedly  sought  to  remedy  existing  conditions. 
The  Constitution  of  Illinois  permits  special  legislation  for  the  protection 
of  workmen  in  coal  mines,  and  for  many  years  an  elaborate  codified  law 
has  been  in  effect.  This  law  when  enacted  was  regarded  as  the  most  com- 
plete and  satisfactory  of  any  in  the  United  States,  and  while  somewhat 
outgrown,  it  is  probably  still  the  most  complete  of  any  in  the  country,  and 
if  rigidly  enforced,  would  be  reasonably  effective.  Under  its  operation  there 
has  been  a  gradual  improvement  of  physical  conditions  in  the  mines,  especially 
as  to  safety  appliances,  safeguards,  and  ventilation. 

Nevertheless  there  has  been  a  steady  and  alarming  increase  in  the 
ratio  of  accidents,  both  fatal  and  non-fatal. 

The  various  factors  previously  mentioned  all  contribute  to  this  degree 
of  hazard.  While  differing  as  to  which  factors  are  most  responsible  for 
this  condition,  both  coal  miners  and  coal  mine  operators  have  recognized 
the  need  for  further  legislation.  In  response  to  this  demand  the  Legis- 
lature in  1903  enacted  a  law  seeking  to  further  control  the  use  of  powder; 
and  in  1905  passed  a  law  requiring  the  employment  of  shot  firers  in  mines 
where  more  than  two  pounds  of  powder  are  used  per  shot,  or  in  mines 
where  gas  exists  in  dangerous  quantities.  While  both  of  these  Acts  have 
been  beneficial,  the  hazard  to  life  and  limb  in  the  mines  of  Illinois  is  still 
increasing. 


120  EMPLOYERS'  ^LIABILITY  COMMISSION 

Recognizing  the  serious  increase  in  disasters  involving  great  loss  of 
life,  the  Federal  Congress  has  authorized  the  establishing  of  rescue  stations 
in  certain  mining  centers  of  the  country,  including  one  in  this  State.  At 
these  stations  rescue  apparatus  is  provided  and  men  trained  at  rescue  work 
are  located.  In  addition,  the  Illinois  General  Assembly  at  the  last  session 
authorized  three  of  these  rescue  stations  in  mining  centers.  It  also  estab- 
lished a  Department  of  Mining  Engineering  at  the  University  of  Illinois, 
where  the  science  of  mining  can  be  studied  .  At  the  special  session  it  au- 
thorized the  formation  of  mining  institutes  locally  throughout  the  State, 
under  the  auspices  of  the  State  University,  which  only  failed  to  receive 
the  approval  of  the  Governor  on  account  of  a  supposed  technical  defect 
in  the  form  of  the  bill.  It  further  created  a  Mining  Investigation  Commis- 
sion, composed  of  three  mine  wrorkers,  three  coal  mine  operators,  and  three 
impartial  representatives  of  the  public,  for  the  purpose  of  making  a  thor- 
ough revision  of  the  mining  Statutes.  Finally,  as  a  result  of  the  "Cherry" 
disaster,  which  will  be  hereinafter  referred  to,  it  enacted  the  most  stringent, 
costly  and  far-reaching  law  known  in  this  country  for  prevention  of  fire 
underground,  and  to  guard  against  its  dire  consequences. 

In  studying  the  conditions  existing  in  this  important  industry,  the 
Commission  has  drawn  freely  upon  statistics  compiled  by  the  State  Bureau 
of  Labor,  data  furnished  by  the  Illinois  Coal  Operators'  Association,  and 
personal  investigation  by  the  representative  of  the  mine  workers  on  the 
Commission. 

The  data  compiled  by  the  Bureau  of  Labor  Statistics  are  for  the  fiscal 
year  ending  June  30th,  of  the  year  designated,  respectively.  Down  to  and  in- 
cluding the  fiscal  year  1897,  the  labor  employed  was  largely  unorganized. 
Since  that  time,  union  labor  has  been  almost  exclusively  employed  and  the 
trade  agreement  has  existed. 

The  following  table  is  taken  from  the  Bureau  of  Labor  Statistics : 


EMPLOYERS'  LIABILITY  COMMISSION 


121 


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122 


EMPLOYERS'  LIABILITY  COMMISSION 


Of  922  coal  mining  operations  in  1908,  504  or  over  one-half  produced 
less  than  10,000  tons  annually  each ;  employed  but  4%  of  the  men ;  pro- 
duced less  than  2%  of  the  tonnage,  and  are  of  little  commercial  importance. 
On  the  other  hand,  174  mines,  or  some  19%,  produced  over  100,000  tons 
annually  each,  and  over  75%  of  the  total  and  employed  over  68%  of  the 
men,  as  indicated  by  the  second  table. 

CLASSIFICATION  OF  MINES  AS  TO  TONNAGE,  SHOWING  MINES,  MEN 
AND  TONS,  WITH  PERCENTAGES,  1908 


MINES  PRODUCING 

•8 

$  8 

IS 

& 

Number  of 
Men. 

Tonnage. 

PERCENTAGES  OF 

Mines. 

Men. 

Tons. 

Less  than  1,000  tons  

248 
256 
146 
98 
92 
82 

823 
2313 
7,495 
11,746 
20,037 
28,427 

95,427 
793,236 
3,879,000 
7,130,739 
13,181,385 
24,192,665 

26.90 

27.77 
15.84 
10.63 
9.97 
8.89 

1.04 
3.27 
10.66 
16.55 
28.46 
40.02 

0.11 
1.70 

7.87 
14.48 
26.74 
49.10 

1,000  and  less  than  10,000  

10,000  and  less  than  50,000  

50,000  and  less  than  100,000  

100,000  and  less  than  200,000  

200,000  and  over  
Totals 

922 

70,841 

49,272,452 

100.00 

100.00 

100.00 

Of  those  employed  under-ground,  about  80%  were  used  in  the  produc- 
tion of  coal  in  1899,  and  the  remainder  in  transporting  it,  maintenance  of  the 
mine,  etc.  In  1908  about  71%  were  employed  in  the  production  of  coal 
and  the  balance  in  these  other  ways.  During  this  period  the  number  of 
miners  increased  85%;  the  number  of  other  under-ground  employes  155%; 
the  number  of  boys  (due  to  changing  the  legal  age  of  employment  from  14 
to  16  and  more  rigid  compliance  with  the  law)  21%,  and  the  number  of 
employes  above  ground  about  69%,  as  indicated  by  the  following  table: 

CLASSIFICATION  OF  EMPLOYES  IN  ALL  MINES  FOR  13    YEARS 


YEAR. 

ALL  EMPLOYES  UNDERGROUND. 

Above 
ground. 

Aggregate. 

Miners. 

Other 
employes. 

Boys. 

Total. 

1897      

25,498 
26,520 
26,449 
27,875 
30,829 
32,875 
34,904 
37,987 
41,202 
42,920 
45,498 
48,931 
50,834 

4,750 
5,082 
5,455 
6,047 
7,595 
7,273 
8,526 
9,812 
10,694 
11,605 
13,026 
13,929 
13,788 

"l',295" 
1,281 
1,326 
1,397 
1,276 
,562 
,540 
,499 
,595 
,564 
,752 

30,248 
31,602 
33,199 
35,203 
39,750 
41,518 
44,703 
49,361 
53,436 
56,024 
60,119 
64,424 
66,374 

3,540 
3,424 
3,792 
4,181 
4,393 
4,487 
5,111 
5,413 
5,794 
6,259 
6,596 
6,417 
6,359 

33,788 
35,026 
36,991 
39,384 
44,143 
46,005 
49,814 
54,774 
59,230 
62,283 
66,714 
70,841 
72,733 

1898  
1899  
1900  

1901  

1902 

1903 

1904 

1905   

1906  

1907  

1908  

1909 

Percent  increase 
13  years  

99.3 

190.27 

35.1 

119.4 

79.63 

115.2 

This   relative   increase  in   labor   not   directly   productive  is   apparently 
due  in  large  part  to  three  causes:    Additional  legal  requirements;  improved 


EMPLOYERS'  LIABILITY  COMMISSION 


123 


terms  of  employment  secured  by  organized  labor,  and  increased  average  age 
of  the  mines,  with  consequent  increased  cost  of  underground  transportation 
and  maintenance. 

As  already  stated,  the  ratio  of  accidents,  both  as  to  number  of  men 
employed  and  as  to  tonnage,  has  gradually  but  steadily  increased.  In  1884 
there  was  one  life  lost  for  each  566  men  employed ;  in  1909,  one  for  each  342. 
In  1884,  out  of  each  one  thousand  men  employed  1.8  lives  were  sacrificed; 
in  1909,  2.9. 

That  the  number  of  tons  of  coal  produced  to  each  life  lost  is  not  sim- 
ilarly affected,  Is  apparently  due  to  the  development  of  thicker  seams  of 
coal  and  the  increased  use  of  mining  machines,  both  of  which  materially 
increase  the  amount  of  coal  produced  per  day,  per  man.  The  figures  are 
as  follows: 

FATAL  ACCIDENTS  FOR  TWENTY-SEVEN   YEARS 


YEAR 

13 
fe 

Total  number 
of  employes. 

Total  tons  of 
coal  mined. 

Number  of  em- 
ployes to  each! 
life  lost. 

Rate  per  1,000. 

Number  of  tons  of 
coal  produced 
to  each  life  lost. 

1883  .  .  . 

*134 

23,939 

12,123,456 

179  6 

5  6 

90,474 

1884    .... 

46 

25,575 

12,208,075 

566 

1.8 

265,393 

1885  

39 

25,946 

11,834,459 

652  4 

1.5 

303,448 

1886  

52 

25,846 

11,175,241 

497 

2.0 

214,909 

1887  

41 

26,804 

12,423,066 

654 

1.5 

303,002 

1888  '  . 

55 

29,410 

14,328,181 

534.7 

1.9 

260,512 

1889  

42 

30,076 

14,017,298 

716.1 

.4 

333,745 

1890 

53 

28,574 

15,274,727 

539  1 

9 

288,203 

1891 

60 

32,951 

15,660,698 

549 

.8 

261,012 

1892 

57 

33,632 

17,862,276 

590 

.7. 

313,372 

1893 

69 

35,390 

19,949,564 

513 

.9 

289,124 

1894     

72 

38,477 

17,113,576 

534 

2.2 

237,688 

1895  
1896  
1897  

75 

77 
69 

38,630 
37,057 

33,788 

17,735,864 
19,786,626 
20,072,758 

515 

481 
489.7 

2.3 
2.3 
2.0 

236,478 
256,969 
290,910 

1898 

75 

35,026 

18,599,299 

467 

2.1 

247,991 

1899           .  . 

84 

36,991 

23,434,445 

440 

2.3 

278,982 

1900            .  .  . 

94 

39,384 

25,153,929 

419 

2.4 

267,595 

1901     

99 

44,143 

26,635,319 

445.9 

2.2 

269,044 

1902  
1903 

99 
156 

46,005 
49,814 

30,021,300 
34,955,400 

464.7 
319.3 

2.2 
3.1 

303,245 
224,073 

1904 

157 

54,774 

37,077,897 

348.9 

2.9 

236,165 

1905 

f!99 

59,230 

37,183,374 

298 

3.4 

186,851 

1906        

155 

62,283 

38,317,581 

402 

2.5 

247,210 

1907     

165 

66,714 

47,798,621 

404 

2.5 

289,689 

1908   

183 

70,841 

49,272,452 

387 

2.6 

269,248 

1909    

213 

72,733 

49,163,710 

341.5 

2.9 

230,816 

Average  —  27  years  

97 

40,890 

24,043,674 

421 

2.4 

247,778 

*Includes  69  men  drowned  at  the  Black  Diamond  Mine,  Braidwood,  and  10  men 
killed  by  explosion  at  Coulterville. 

flncludes  45  men  killed  by  explosion  at  Ziegler. 

Other  disasters:  1909,  26  men  killed  by  explosion  at  Ziegler;  1910,  257  killed  at 
Cherry,  not  included  in  table. 


124 


EMPLOYERS'  LIABILITY  COMMISSION 


Investigation  reveals  the  fact  that  there  has  been  a  great  proportional 
increase  in  fatal  accidents  due  to  certain  causes.  For  instance,  out  of  560 
fatal  accidents  from  1888  to  1896  inclusive,  but  66,  or  11.8%,  were  caused 
by  blasts  and  explosions.  During  the  period  from  1897  to  1909  inclusive, 
out  of  748  fatal  accidents,  385,  or  22%,  were  due  thereto;  while  for  the 
year  1909,  out  of  213  fatal  accidents,  69,  or  32.8%,  were  due  to  the  same 
cause.  On  the  other  hand,  out  of  560  fatal  accidents  from  1888  to  1896 
inclusive,  326,  or  58.2%,  were  caused  by  falling  coal,  rock  and  roof,  as 
against  868  out  of  1,748  fatal  accidents  from  1897  to  1900  inclusive,  or  49% ; 
and  84  out  of  213  in  the  year  1909,  or  39%.  The  increase  of  fatal  accidents 
caused  by  pit  cars  are  8%,  11.4%,  and  11.2%  respectively  for  the  three 
periods. 

Figures  indicate  that  the  hazard  on  the  hauling  roads  and  from  the 
use  of  powder,  and  from  gas  explosions  have  increased  disproportionately, 
and  preventative  efforts  should  be  applied  particularly  thereto.  The  figures 
follow : 


FATAL  ACCIDENTS  FOR  TWENTY-ONE  YEARS,  BY  LEADING  CAUSES 


YEARS 

£ 

LEADING  CAUSES 

OTHER 
CAUSES. 

! 

T3 

s 

1 

1  : 

1 

bfl^: 

I1: 

*; 

"3 

i 

1 

W 

1 
"f 

it 

S-8 

&< 

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1 

'55 

rt 

1 

I 

1 

1 
1 
J! 

1888  . 

55 
42 
53 
60 
57 
69 
72 
75 
77 
69 
75 
84 
94 
99 
99 
156 
157 
199 
155 
165 
183 
213 

9 
3 
4 
11 
4 
6 
8 
12 
9 
11 
11 
4 
17 
3 
13 
47 
44 
82 
24 
24 
36 
69 

2 
4 
4 
4 
4 
4 
8 
4 
5 

'2 
5 
4 
1 
2 
6 
4 
6 
5 
8 
1 
4 

33 
26 
36 
*  33 
28 
48 
43 
38 
41 
46 
43 
51 
51 
57 
55 
77 
65 
80 
84 
84 
91 
84 

4 
2 

i 

8 
3 
5 
4 
6 
5 
4 
4 
1 
1 
7 
2 
8 
4 
9 
6 
3 
5 

5 
4 
3 
2 

5 
2 

2 
7 
4 
1 
1 

3 
4 
4 

6 
5 
3 
2 
6 
2 
6 
5 
7 
1 
2 
6 
11 
11 
15 
18 
21 
10 
18 
28 
35 
24 

1 

i 

2 
1 
1 
2 
1 
1 
1 
1 
1 
2 

2 

'2 
1 
4 
4 
8 
8 

44 

55 
40 
53 
57 
54 
66 
72 
69 
21 
66 
70 
75 
87 
74 
94 
150 
144 
186 
144 
158 
174 
198 

100.0 
95.2 
100.0 
95.0 
94.7 
95.7 
100.0 
92.0 
92.2 
95.7 
93.3 
89.3 
92.6 
74.7 
95.0 
96.2 
91.7 
93.5 
92.9 
95.8 
95.1 
93.0 

1889  
1890  
1891  
1892  
1893  

2 

4.8 

3 
3 
3 

"e 

6 
3 
5 
9 
7 
25 
5 
6 
13 
13 
11 
7 
9 
15 

5.0 
5.3 
4.3 

8.0 
7.8 
4.3 
6.7 
10.7 
7.4 
23.3 
5.0 
3.8 
8.3 
6.5 
7.1 
4.2 
4.9 
7.0 

1894 

1895 

1896 

1897 

1898  
1899  
1900  
1901  
1902  
1903  
1904  
1905 

1906  
1907  
1908  
1909  

Total  22  years.  .  . 
Percentages  22  years 

2,308 

451 

87 

1,194 

92 

47 

242 

2,157 

93.5 

151 

6.5 



19.5 

3.8 

51.7 

4,0 

2.0 

10.5 

1.9 

t 

6.5 



EMPLOYERS'  LIABILITY  COMMISSION 


125 


That  the  increasing  degree  of  hazard  in  the  coal  mines  of  Illinois  is 
due  in  considerable  part  to  the  over  use  of  powder  where  the  coal  is  not 
undercut,  is  clearly  indicated  by  comparing  the  Bureau  of  Labor  Statistics 
for  the  years  1897  and  1909,  which  show  that  with  the  proportionate  in- 
crease of  both  fatal  and  non-fatal  accidents,  there  has  been  a  corresponding 
decrease  in  the  amount  of  coal  produced  per  keg.  In  1897  there  was  pro- 
duced in  all  mines  of  the  State  using  powder  49.60  tons  per  keg.  In  1909, 
35.54,  a  decrease  of  28.35%.  In  1897,  for  mines  shooting  "off  the  solid"' 
31  tons  per  keg;  in  1909,  for  all  hand  mines  (including  both  coal  undercut 

t  by  hand  and  shot  "off  the  solid")  25.81  tons,  a  decrease  of  16.74%.  In 
1897  the  data  for  mines  shooting  "off  the  solid"  and  mines  in  which  coal 
is  undercut  either  by  machine  or  by  hand,  are  compiled  separately.  In 
1909  data  for  hand  mining  mines,  whether  "solid  shooting"  or  undercut  by 
.hand,  and  mines  in  which  the  coal  is  undercut  by  machines  only,  are 
compiled  separately.  Since  the  figures  for  1909  are  for  all  coal  mined  by 
liand,  whether  undercut  or  not,  the  actual  amount  of  coal  produced  per 
keg  of  powder  for  "solid  shooting"  mines  only  in  that  year  would  be  ma- 
terially less.  That  this  is  so  is  revealed  by  the  1909  figures  in  the  Fourth  and 

.Sixth  Inspection  Districts  of  the  State,  in  which  coal  is  most  extensively 
shot  "off  the  solid"  where  the  number  of  tons  produced  per  keg  in  1909  was 
but  19.06  and  19.36  respectively;  and  by  the  experience  in  Sangamon  County 
where  practically  all  the  coal  is  shot  "off  the  solid,"  and  where  28.72  tons 
per  keg  of  powder  was  produced  in  1897,  and  but  22.38  tons  in  1908.  These 
figures  would  indicate  that  the  actual  number  of  tons  now  produced  from 
all  "solid  shooting"  mines  in  the  State  is  about  22  tons,  or  a  decrease  of 
about  29%  since  1897. 

On  the  other  hand,  in  1897,  96.62  tons  per  keg  of  powder  were  produced 
in  mines  where  the  coal  was  undercut  by  hand  or  machine;  in  1909,  112.16 
tons  in  mines  where  the  coal  is  undercut  by  machines,  an  increase  in  coal 
produced  per  keg  of  powder  of  about  16%.  Since  it  makes  little  difference 
in  so  far  as  the  amount  of  powder  required  is  concerned,  whether  coal  is 
undercut  by  hand  or  by  machine,  this  latter  comparison  is  reasonably  ac- 
curate. The  tables  follow: 

TONS  OF  COAL  PER  KEG  OF  POWDER,  SHIPPING  MINES, 
WHERE  POWDER  IS  USED 


YEARS 
INCLUSIVE. 

HAND  MINES. 

MACHINE  MINES. 

Tons. 

Kegs. 

Tons 
per  Keg. 

TOM. 

Kegs. 

Tons 
per  Keg 

1888-1892... 
1893-1897 
1898-1902 
1903-1907... 
1908-1909... 

38,276,734 
51,016,235 
35,595,588 
109,303,224 
50,543,726 

1,005,078 
1,419,824 
1,121,818 
4,014,867 
1,971,741 

38.08 
35.93 
31.73 
26.97 
25.63 

12,989,371 
18,726,468 
17,962,235 
36,370,548 
21,859,305 

138,260 
188,084 
166,603 
345,486 
214,830 

93.94 
99.56 
107.81 
105.27 
101.80 

TONS  OF  COAL  PER  KEG  OF  POWDER,  SANGAMON  COUNTY 


YEARS. 

Tons. 

Kegs. 

Tons 
per  Keg. 

1897.. 
1908  

1,834,458 
5,039,334 

63,879 
225,234 

28.72 
22.38 

126 


EMPLOYERS'  LIABILITY  COMMISSION 


The  statistics  show  that  there  was  a  steady  relative  increase  in  the 
number  of  fatal  accidents  due  to  the  use  of  powder  and  a  steady  decrease 
in  the  amount  of  coal  produced  for  each  fatal  accident  prior  to  the  passage 
of  the  amended  act  of  the  General  Assembly  requiring  the  employment  of 
shot  firers  in  1907,  and  that  there  was  a  relative  decrease  in  the  number 
of  fatal  accidents  due  to  the  use  of  powder  and  an  increase  in  the  amount  of 
coal  produced  for  each  fatal  accident  thereafter. 

The  tables  follow: 


FATAL 


YEARS  INCLUSIVE 

Total  Injured 

Number  of  Men  Killed 
in  Powder  Accidents 

Percent  Powder 
Fatalities  of  Total 
Fatalities 

1888-1892 

267 

27 

10  11 

1893-1897 

362 

49 

13  54 

1898-1902 

451 

74 

16  40 

1903-1907           .    ... 

774 

162 

20  93 

1908-1909  

396 

58 

14  64 

TONS  OF  COAL  PRODUCED  FOR    EACH  FATAL   ACCIDENT    DUE  TO    POWDER 

FROM  1888  TO  1907,  AVERAGE  5  YEAR  PERIOD,  AND  FOR  1908-1909 

ALL   COAL  MINED 

3,000,000 


2,000,000 


1,000,000 


2,5: 

8,000 

1.932 

2.000 

1,67: 

1.000 

1,628,400 

I.2O 

5.000 

1866-1892     1893-1897      1898-19O2      19O3-1907      18O8  19O9 


EMPLOYERS'  LIABILITY  COMMISSION 


127 


RELATIVE  PERCENTAGES  OF  FATAL  POWDER  ACCIDENTS  TO  ALL  FATAL 

ACCIDENTS  FROM  1888  TO  1907,  AVERAGE  5  YEAR  PERIOD,  AND 

FOR  1908-1909 


20% 


1O  1156 


13. 


16  40$ 


14-65$ 


1888-1892  1893-1907  1 898-1 9O2  1903-1907  1908-1909 

The  most  hazardous  calling  in  the  mine  is  that  of  the  shot  firer,  and 
next  that  of  the  driver.  Assuming  that  four  shot  firers  and  twenty  drivers 
are  employed  in  a  mine  requiring  two  hundred  miners,  the  position  of  shot 
firer  is  found  to  be  nearly  fourteen  times  as  hazardous  as  that  of  the  coal 
miner,  and  the  position  of  driver  nearly  three  times  as  hazardous. 

The  following  table  shows  the  occupation  and  conjugal  relation  of  the 
men  killed  in  1909. 

OCCUPATION  AND  CONJUGAL  RELATION  OF  MEN  KILLED  AT  THE  MINES 
FOR  THE  YEAR   1909. 


• 

OCCUPATION 

Total 
Deaths 

Percentages 

CONJUGAL  RELATION. 

Married 

Single 

Widows 

Children 

De- 
pendents 

Blacksmiths.  .  . 

1 

3 

1 
3 
23 
2 
1 
1 
1 
45 
1 
5 
4 
1 
89 
25 
1 
2 
2 
2 

0.47 
1.41 
0.47 
1.41 
10.80 
0.94 
0.47 
0.47 
0.47 
21.12 
0.47 
2.35 
1.88 
0.47 
41.78 
11.73 
0.47 
0.94 
0.94 
0.94 

"2 
1 
2 
4 
2 

29 

3 
1 
60 
13 
1 
2 

1 

1 
1 

Cagers  

2 
1 
2 
4 
2 
1 
1 
1 
29 
1 
4 
3 
.1 

7 
4 
5 
7 
1 
5 
1 
5 
51 
1 
15 
3 

9 
5 
7 
11 
3 
6 
2 
6 
80 
2 
19 
6 
1 
181 
31 
6 
9 

Carpenter.  . 

Car  Trimmers 

1 
19 

Drivers.  .    .    . 

Electricians     .  .    .        

Engineer  

Fireman 

Foreman 

ie 

i 
i 

Laborers. 

Loader  . 

Machine  Helpers.                  .  .    . 

Machine  Runners  ...           

Mine  Examiner  
Miners  
Shot-firers  :  

29 
12 

57 
12 
1 
2 

155 
22 
5 
7 

Timberman 

Trackmen.     .                       .... 

"2" 
1 

Tripriders 

1 

4 

5 

Totals                         

213 

100.00 

129 

84 

125 

298 

392 

128 


EMPLOYERS'  LIABILITY  COMMISSION 


As  already  stated,  the  non-fatal  accidents  have  increased  at  a  greater 
rate  than  the  number  of  men  employed  or  the  production  of  coal.  The  Bu- 
reau of  Labor  Statistics  for  the  period  prior  to  and  including  1901,  reported 
accidents  involving  a  disability  of  one  week  or  over.  From  the  year  1902 
inclusive  they  have  reported  only  non-fatal  accidents  involving  a  disability 
of  thirty  days  or  over.  Data  regarding  non-fatal  accidents  involving  dis- 
ability of  more  than  one  week  and  of  less  than  thirty  days  not  being 
available  since  1901,  the  only  possible  intelligent  comparison  covering  the 
period  both  before  and  since  that  year  is  on  the  basis  of  a  disability  of 
thirty  days  or  more.  For  the  purpose  of  such  comparison  a  detailed  analy- 
sis of  the  non-fatal  accidents  occurring  in  the  fiscal  year  1897  has  been  made 
and  that  basis  taken  for  the  period  prior  to  1902.  The  analysis  shows  that 
out  of  518  non-fatal  accidents  reported  in  1897,  involving  disability  of  one 
week  or  more,  432,  or  83%,  involve  a  disability  of  two  weeks  or  more, 
and  292,  or  56%,  a  disability  of  thirty  days  or  more.  The  figures  show 
that  for  the  eighteen  years  down  to  and  including  1900,  the  number  of 
employes  to  each  man  injured  decreased  from  104  to  65,  or  an  increase  In 
injuries  for  each  one  thousand  employed  of  from  9.6%  to  15.5%.  On  the 
basis  of  a  disability  of  thirty  days  or  more,  the  number  of  employes  to  each 
men  injured  decreased  from  186  to  115,  or  38.17%;  and  the  number  of 
tons  produced  to  each  man  injured  decreased  from  52,482  to  41,168,  or 
21.53%.  Since  1902  inclusive  the  number  of  employes  to  each  man  in- 
jured, involving  disability  of  thirty  days  or  over,  further  decreased  from 
127  in  1902  to  81  in  1909,  a  total  decrease  for  the  twenty-seven  year  period 
from  186  to  81,  or  105%,  or  an  increase  of  injuries  for  each  one  thousand 
men  employed  of  from  5.4  to  12.3,  or  146.29%.  The  tables  follow: 

NON-FATAL  ACCIDENTS,  1897. 


DISTRICT 

Total  One  Week  or  More 

Two  Weeks  or  More 

i*«                -    V       fcB=S!  -..-..:     j 

Thirty  Days  or  More 

1  

190 

{150        79% 

f86        45% 

2... 

100 

77        77% 

5°%55        55% 

3  

11 

8        73% 

6        55% 

4  

57 

52        81% 

34        60% 

5.. 

54 

52        96% 

41        76% 

6. 

64 

54        84% 

44        69% 

7.         . 

42 

39        93% 

26        62% 

. 

518 

432        83% 

292        56% 

(Beginning  with  the  following  page,  the  left,  or  even  numbered,  pages  are 
devoted  to  detailed  statistics  referred  to  repeatedly  in  the  text,  but  which, 
on  account  of  the  extreme  length  of  the  tables,  cannot  be  directly  inserted  in 
their  proper  places.  The  right,  or  odd  numbered,  pages  carry  the  continuous 
story  of  our  work. — SECRETARY.) 


EMPLOYERS'  LIABILITY  COMMISSION 


129 


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130 


EMPLOYERS'  LIABILITY  COMMISSION 


Investigation  of  non-fatal  accidents  by  causes  has  also  been  made,  con- 
fined to  the  more  recent  period  of  nine  years.  Outside  of  the  significance 
of  the  powder  increase  already  considered,  the  most  important  factor  re 
vealed  is  the  comparatively  new  hazard  arising  from  gas  explosions.  Prior 
ta  1903  less  than  1%  of  the  non-fatal  accidents  arose  from  this  source, 
while  in  1908  they  amounted  to  4.5%  of  the  whole,  and  in  1909  to  2.8%. 
Most  of  these  accidents  occurred  in  Franklin,  Williamson  and  Saline  Coun- 
ties, where  the  coal  measures  have  been  extensively  developed  of  late  years, 
and  where  more  gas  is  found  than  elsewhere  in  the  State.  It  is  not  be- 
lieved that  the  hazard  there  from  this  source  is  inherently  greater  than 
with  gas  coal  measures  in  other  parts  of  the  country,  and  it  is  to  be  ex- 
pected that  with  increasing  experience,  the  hazard  arising  from  this  source 
will  be  steadily  decreased.  The  figures  are  as  follows : 

PERCENTAGES  OF  NON-FATAL  ACCIDENTS  FOR  EIGHT  YEARS, 
1901-1909,  BY  CAUSES 


PERCENTAGES. 


YEARS 

USE  OF  POWDER 

IJ 

"S  3  m 

'f£  <L> 

|1I9 

OTHER  CAUSES. 

ALL  CAUSES. 

&! 

il 

a 

Ij 

Ja 

« 

ji 

£§ 

P 

1 

ts. 

c 

'i 

1 

I 

|| 
£tf 

lg 

£ 

i 

J 

a 

> 

i 

it 

PQ 

ri 

1 
J 

11 

e4( 

I2 

i 

S 

1 

1909  
1908  
1907  
1906  

36.8 
22.2 
16.0 
21.9 
26.0 
11.1 
27.7 
53.6 

7.9 
8.3 
8.0 
3.1 
6.0 
9.3 
6.3 
3.6 
40.7 

ii'.Q 

18.8 
12.0 
3.7 
25.5 
3.6 
7.4 

29.0 
30.6 
32.0 
28.1 
30.0 
53.7 
14.9 
21.4 
18.5 

26.3 
38.9 
30.0 
28.1 
26.0 
22.2 
25.5 
17.8 
33.4 

100.00 
100.00 
100.00 
100.00 
100.00 
100.00 
100.00 
100.00 
100.00 

2.9 
4.5 
1.5 
1.3 
6.2 
1.3 
1.4 
0.6 
0.8 

49.  4 
51.4 
55.8 
56.5 
55.5 
58.3 
45.2 
52.4 
59.0 

29.1 
26.7 
29.2 
24.6 
26.6 
27.2 
35.3 
33.0 
28.7 

18.6 
17.4 
13.5 
17.6 
11.7 
13.2 
18.1 
14.0 
11.5 

4.2 
4.4 
7.9 
6.7 
9.3 
10.6 
11.5 
6.9 
6.4 

2.8 
4.3 
1.4 
1.2 
0.6 
1.2 
1.2 
0.5 
0.8 

47.3 
49.1 
51.4 
52.7 
50.3 
52.1 
40.0 
48.8 
53.1 

27.9 
25.5 
26.9 
22.4 
24.2 
24.3 
31.2 
30.7 
26.8 

17.8 
16.7 
12.4 
17.0 
15.7 
11.8 
16.1 
13.1 
10.9 

1905  
1904  
1903  
1902  
1901   

Bine  years  .  .  . 

23.2 

9.4 

10.0 

30.1 

27.3 

100.00 

1.9 

53.4 

28.6 

16.1 

7.1 

1.8 

49.6 

26.6 

14.9 

The  percentage  of  increase  and  decrease  from  year  to  year  in  number 
of  men  employed  and  tons  produced,  in  men  killed  and  in  men  injured 
during  the  past  25  years  also  has  been  ascertained.  The  period  from  1885 
to  1901  inclusive,  is  considered  separately  because  for  that  period  the  non- 
fatal  accidents  cover  a  disability  of  one  week  or  more,  while  in  subsequent 
years  they  cover  a  disability  of  thirty  days  or  over  only.  The  indicated 
decrease  in  non-fatal  accidents  in  1901  is  probably  more  apparent  than  real, 
judged  by  the  figures  for  both  previous  and  later  years,  and  is  probably 
due  to  the  State  Mine  Inspectors  in  this  transition  year  reporting  in  part 
on  the  seven  day  basis  theretofore  existing,  and  in  part  on  the  thirty  day 
basis  thereafter  established.  For  the  seventeen  year  period  ending  1901, 
figures  show  an  aggregate  increase  in  men  employed  of  72.60%;  in  tonnage 
produced  of  118.18%;  in  men  killed  of  153.85%,  and  of  men  injured  of 
139.83%.  For  the  eight  year  period  from  1902  to  1909  inclusive,  the  figures 
show  an  increase  in  men  employed  of  39.31%;  in  tonnage  produced  of 


EMPLOYERS'  LIABILITY  COMMISSION 


131 


8  :  :  : 


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132 


EMPLOYERS'  LIABILITY  COMMISSION 


45.82%;  in  men  killed  of  115.15%,  and  of  men  injured  of  111.85%.     Durii 
the  earlier  period  there  was   therefore  a  material   decrease  of  fatal   ac 
dents  relative  to  the  number  of  men  employed  and  tons  produced,   and 
nearly  stationary  proportion  of  non-fatal   accidents.     For   the  more  recei 
period  there  has  been  an  increase  in  both   fatal   and  non-fatal   accident 
approximately  three  times  as  great  as  in  the  number  of  men  employed,  ai 
approximately  two  and  one-half  times  as  great  as.  the  increase  in  tonnag 
The  table  follows : 


PERCENTAGES  OF  INCREASE*AND    DECREASE  FROM   YEAR  TO  YEAR   OF 

MEN  EMPLOYED,  TONS  PRODUCED,  MEN  KILLED  AND  MEN  INJURED 

FOR  A  SERIES  OF  TWENTY-FIVE  YEARS. 


YEAR 

Men  Employed 

Tons  Produced 

Killed 

Injured 

Inc. 

Dec. 

Inc. 

Dec. 

Inc. 

Dec. 

Inc. 

Dec. 

1885  
1886 

1.45 

0  38 

3.06 
5.57 

33*33 

15.22 



10.66 

2.84 

CK56 

1887 

3  71 

11.17 
15.34 

21.15 
23^64 

"5.00 

5.26 

1^29 
46.27 
24.83 
0.82 
8  92 

1888  
1889 

9.72 
2.26 



"2.17 

34.15 

1890 

5.00 

8.97 
3.53 
14  06 

26.19 
13.20 

1891       .            

15.31 

1892 

2.07 

1893     

5.23 

11.69 

21  05 

1894     

8  72 

14.22 

4.35 
4.17 
2.67 

'io'39 

29.28 
16.12 
11.70 

36^30 
2.35 

22  '92 
15.44 

30~93 

1895             

0.40 

4.70 

8.82 

3.64 
11.56 
1.45 

26*00 
7.34 
5.89 

1896     

1897     

1898  
1899   

3.66 
5.61 

7.34 

8.7 
12.00 
11.90 
5.32 

1900   

6.47 



1901  

12.08 

Inc.  17  years  
1902   

72.60 

4.21 
8.28 
9.96 
8.14 
5.15 
7.11 
6.19 
2  67 



118.18 

12.71 
16.44 
6.07 
0.28 
3.05 
24.74 
3.08 

0^22 

153.85 

7.4 
57.58 
0.64 
26.75 

6~45 
10.91 
16.39 

139.83 

3.08 
io'28 

1903  

0.99 
23.66 
5.52 

32*50 
28.77 
9.16 

1904  

22ili 

1905  
1906  
1907  
1908  
1909 



P 

T  Inc.  8  years  

64.77 

84.68 

115.15 

111.85 

There  has  also  been  investigated  819  non-fatal  accidents  in  the  coal 
mines  of  Illinois  reported  to  the  State  Bureau  of  Labor  Statistics  for  the 
fiscal  year  1908  involving  a  disability  of  thirty  days  or  more,  obtaining 
the  detailed  data  from  the  employer,  through  the  medium  of  the  Illinois  Coal 
Operators'  Association.  It  has  ascertained  the  nature  of  the  injury  in  each 
case,  the  conjugal  relations  of  each ;  the  aggregate  time  lost  for  each  kind 
of  injury,  and  the  average  number  of  days  lost  for  each  person  injured 
for  each  class  of  injury,  separately.  The  figures  will  be  of  some  aid  in 


EMPLOYERS'  LIABILITY  COMMISSION 


133 


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EMPLOYERS'  LIABILITY  COMMISSION 


attempting  to  arrive  at  the  cost  of  any  plan  of  general  compensation  adopt 
but  are  necessarily  incomplete  in  ignoring  accidents  involving  disability 
less  than  thirty  days.  The  table  follows: 


NATURE  OF  INJURY. 

No. 

Married. 

Single. 

Children. 

Depend- 
ents. 

TIME   LOST 
—DAYS. 

Total. 

Average 

Legs  broken 

132 
77 
68 
66 
66 
33 
32 
30 
26 
24 
18 
18 
15 
13 
13 
12 
10 
10 
9 
8 
7 
6 
6 
5 
4 
4 
4 
4 
4 
3 
3 
3 
3 
2 
2 
2 
2 
2 
2 

1 
1 
1 

71 
47 
32 
41 
41 
19 
13 
17 
16 
9 
12 
10 
8 
5 
8 
8 
6 
3 
5 
3 
3 
3 
3 
2 
2 
4 
2 
1 
2 
3 
2 
2 
1 

61 
30 
36 
25 
25 
14 
19 
13 
10 
15 
6 
8 
7 
8 
5 
4 
4 
7 
4 
5 
4 
3 
3 
3 
2 

148 
118 

63 
83 
56 
36 
34 
40 
32 
6 
26 
26 
18 
10 
11 
25 
4 
5 
11 
3 
5 
8 
8 

i 

6 
4 
2 
4 
5 
8 
1 

216 
164 
88 
121 
84 
53 
47 
58 
45 
13 
37 
37 
26 
11 
19 
33 
6 
8 
16 
5 
8 
11 
11 
2 
2 
10 
7 
3 
6 
8 
10 
3 
1 

9,395 
3,542 
3,006 
2,870 
2,603 
1,617 
1,913 
1,137 
1,109 
953 
947 
777 
911 
405 
625 
442 
399 
572 
508 
561 
346 
327 
304 
211 
183 
230 
230 
90 
122 
138 
60 
103 
246 
91 
53 
75 
35 
120 
67 
70 
5 

71.1 
46 
44.2 
43.4 
39.4 
49 
59.7 
37.9 
42.5 
39 
52.6 
43.2 
60.6 
31.1 
48 
36.8 
39.9 
57.2 
56.4 
70.0 
49.4 
54.5 
50.6 
42.2 
45.7 
57.5 
57.5 
22.5 
30.5 
46 
20 
34.3 
82 
45.5 
26.5 
37.5 
17.5 
60 
33.5 
70 
5 

Backs  injured  

Feet  injured  

Body  injured  

Legs  injured  

Head  injured 

Arms  broken  

Ankles  injured 

Fingers  injured 

Hands  injured 

Body  burned 

Arm  injured 

Collar-bone  broken             

Hips  injured 

Knee  bruised 

Hips  dislocated 

Arms,  Face  and  Body  burned 

Feet  fractured 

Feet  crushed 

Ankles  broken 

Fingers  amputated 

Back,  Legs  and  Shoulders  injured 
Eyes  injured 

Face  and  Hands  injured  
Body  bruised 

Face  and  Hands  burned 

Face  burned           .    .          .    . 

2 
3 
2 

1 
1 
2 
2 
2 
1 

Hands  broken 

Head  and  Body  injured 

Arms  and  Head  bruised 

Eyes  destroyed      ...        

Head  and  Shoulders  injured  
Jaw  fractured  

Arms  and  Legs  injured 

Arms  and  Face  burned  
Backs  and  Hips  injured 

1 
2 

1 

4 
4 
5 
1 

Feet  and  Hips  injured.  
Hips  fractured  

2 
3 
4 

1 

1 

Hips  crushed  

Ankles  dislocated  
Abdomen  injured 

1 

Backs  broken 

5 
1 
3 
2 
1 

6 
2 
4 
3 
2 

Backs  and  Knees  injured  
Chin  cut  



93 
90 
35 
62 
30 

93 
90 
35 
62 
30 

Face,  Sides  and  Arms  injured  
Face  and  Hands  burned  

Faces  cut 

Foot  amputated 

1 

Fingers  broken 

40 
40 

40 
40 

Head  and  back  injured  



5 

6 

(Continued  on  page  136.) 


EMPLOYERS'  LIABILITY  COMMISSION 


135 


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136 


EMPLOYERS'  LIABILITY  COMMISSION 


NATURE  OF  INJURY 

No. 

Married. 

Single. 

Children. 

Depend- 
ents. 

TIME  LOST 
—DAYS. 

Total. 

Average 

Internally  injured  

20 

2 
9 
1 
3 
10 
3 
3- 
1 
3 
1 
2 
4 
1 

i 
i 

12 
1 

1 

1 
1 

i 

8 

Knee  Cap  broken  

Knees  dislocated  

4 
5 

22 
5 

5 
6 

34 
6 
1 

35 
156 
90 
847 
90 
180 
92 
373 
30 
344 
384 
177 
102 
39 
186 
32 
145 
251 
120 

35 
156 
90 
42.3 
90 
180 
46 
41.5 
30 
114.6 
38.4 
59 
34 
39 
62 
32 
72.5 
62.7 
120 

Pelvis  bone  broken  
Ruptured 

Ribs  broken  

Shoulders,  Thigh  and  Hip  injured 
Stomach  injured 

Shoulders  dislocated 

2 
5 

Shoulders  injured 

4 
1 
2 
3 
1 
1 

18 
1 
7 
2 
1 
4 

22 
1 
9 
4 
2 
5 

Shoulders  broken 

Shoulder  Blade  broken  
Toes  broken 

1 

7 
2 
2 

1 
1 

1 

"2 

Toes  injured    

Toes  amputated  

Toes  cut  and  Ankle  bruised  
Thumbs  injured  

2 

"2 
2 
1 

4 

6 

Thumb  cut  off        

Thigh  broken  and  Back  injured.  .  . 
Wrists  injured          

3 

7 
2 

5 
8 
3 

Wrists  broken      

Total  

819 

424 

375 

920 

1,326 

41,456 

50.6 

COST  UNDER  TENTATIVE  PLAN. 

With  the  ratio  of  increase  of  accidents  from  year  to  year  seemingly  fixed, 
we  may  assume  that  200  fatal  and  nearly  1,000  serious  accidents  should  be 
provided  against  for  the  year  1911.  Estimating  wages  at  $2.50  per  day,  we 
find  $750  as  the  proper  maximum  amount  upon  which  to  base  our  compu- 
tations : 

200    fatal    accidents— 3x200  X  $750.00 $450,000 

200  serious  or  permanent  accidents— 2  X  200  X  $750.00 300,000 

800  temporary  (or  30  day)  disability  cases  at  $2.50  per  day — 

30X800X$2.50  60,000 


Probable  cost  under  Commission  plan $810,000 

(This  does  not  include  medical,  surgical,  hospital  or  similar  expendi- 
tures.) 

This  maximum  total  of  $810,000  provided  under  the  Commission's  plan, 
forms  a  striking  contrast  to  the  haphazard  system  revealed  in  the  tables  ac- 
companying this  report.  It  is  the  position  of  the  Commission  that  a  workman 
is  a  unit  of  value  to  his  family,  Ms  industry  and  to  society,  and  that  the  at- 
tempt to  shift  the  burden  of  his  loss  from  the  industry  which  caused  it  to  his 
family  or  to  society  is  economically  wrong.  Let  the  coal  carry  the  cost. 
That  is  where  the  cost  belongs. 

With  50,000,000  tons  of  coal  annually  produced,  a  uniform  increase  of 
1.6  cents  per  ton  would  recoup  the  coal  operators  for  the  necessary  expendi- 
tures. The  present  estimated  value  per  ton  at  mine  is  $1.02.  Should  this 
prompt  the  exercise  of  extra  care,  as  the  Commission  confidently  anticipates, 


EMPLOYERS'  LIABILITY  COMMISSION 


137 


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138  EMPLOYERS'iLIABILITY  COMMISSION 

only  a  portion  of  this  increase  would  be  utilized  for  the  purpose  of  compensa- 
tion—the remainder  going  into  the  plant  in  additional  safeguards  and  con- 
veniences. 

From  the  figures  gleaned  from  individual  cases  presented  herewith,  fatal 
accidents  would  seem  to  compensate  the  family  of  the  miner  in  the  sum 
of  $168  each  or  for  a  total  of  $33,600,  as  against  the  sum  of  $450,000  estimated 
in  our  secondary  analysis  as  probable  maximum  cost  under  the  Commission 
plan. 

Compensation  for  non-fatal  accidents  under  the  plan  proposed  would 
increase  from  an  estimated  total  under  present  conditions  of  $300,000  for 
both  fatal  and  non-fatal  to  a  possible  total  of  $360,000  per  year  for  non-fatal 
accidents  alone  under  the  Commission  plan. 

The  additional  burden  would  therefore  not  be  so  serious  to  the  con- 
sumer of  the  product  as  at  first  suggested.  The  necessity  for  protective  pro- 
vision to  avert  disasters,  such  as  the  Black  Diamond,  Ziegler,  and  Cherry 
catastrophes,  has  created  now  a  fixed  charge  against  the  industry,  although 
one  shrunk  from  by  the  whole  industrial  group  in  the  effort  to  meet  com- 
petitive conditions  in  our  surrounding  mining  commonwealths.  A  twenty-six 
year  summary  of  cases  similar  to  the  Cherry  horror,  and  not  inclusive  of 
the  ordinary  hazard,  shows  a  total  of  416  deaths  or  16  per  year.  This  (the 
calamity  hazard)  may  be  guarded  against  at  a  very  small  per  cent  of  pay- 
roll. This  sum  divided  between  922  mines  employing  72,000  men,  with  a 
probable  pay-roll  of  $60,000,000  a  year,  should  not  present  serious  difficulty. 


FATAL  ACCIDENTS. 

The  Commission  has  also  investigated  120  fatal  accidents  occurring  in 
1908,  securing  this  data  also  from  the  employer  through  the  Illinois  Coal 
Operators'  Association.  The  data  in  regard  to  settlements  are  of  limited 
value,  because  of  the  number  of  suits  pending  or  yet  to  arise.  Moreover  where 
the  employer  carried  liability  insurance,  many  settlements  may  have  been  made 
either  out  of  court,  or  in  court,  by  the  insurance  company,  without  the  em- 
ployers' knowledge,  and  hence  would  not  appear  in  the  report.  The  tables 
are  found  on  pages  131,  133,  135  and  137. 

In  the  120  cases  investigated  by  the  Commission,  twenty-six  were  settled 
by  the  operator  without  recourse  to  law.  The  total  compensation  paid 
amounted  to  $7,648.55 — an  average  settlement  of  $294.18.  Ten  cases  reached 
the  courts  and  in  these  cases  a  total  judgment  was  had  of  $11,021.50 — an 
average  of  $1,102.15.  These  cases  are  complete  and  exceptions  noted  above 
do  not  apply.  Nine  cases  are  pending  in  court.  Seventy-five  fatal  accidents 
have  not  reached  the  courts  and  no  settlement  can  be  discovered.  The 
reasonable  presumption  is  that  there  was  none. 

Adding  the  amount  of  compensation  received  through  private  settlement 
($7,648.55)  to  the  amount  credited  to  court  recoveries  ($11,021.50)  and  di- 
viding by  the  number  of  recorded  cases  (120),  less  the  number  of  suits  pend- 
ing (9),  an  average  payment  is  recorded  of  $168.20. 


EMPLOYERS'  LIABILITY  COMMISSION 


139 


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140 


EMPLOYERS'  LIABILITY  COMMISSION 


NON-FATAL  ACCIDENTS. 

The  Commission  has  also  investigated  numerous  non-fatal  accidents 
through  the  representative  of  the  United  Mine  Workers  on  the  Commission, 
Mr.  Carr,  and  in  that  way  secured  information  concerning  107  accidents  as 
to  the  nature  of  injury;  cause  of  accident;  the  number  of  dependents;  cost 
of  medical  attendance;  wages  lost;  insurance  collected  (both  trades  union 
and  fraternal)  ;  the  payments  from  the  employer  for  wages,  medical  or 
surgical  service,  or  indemnity ;  other  aid  rendered,  etc.  The  tables  are  found 
on  pages  139,  141,  143  and  145. 

An  attempt  has  also  been  made  to  ascertain  the  average  cost  of  medical 
attendance,  and  the  average  indemnity  paid  during  the  year  1908  for  com- 
pleted cases  of  each  class  of  injury.  The  figures  are  believed  to  be  reliable 
for  the  goodly  number  of  cases  reported.  The  table  follows : 


INJURY. 

1 

AVERAGE. 

INJURY. 

1 

AVERAGE. 

J« 

1 

|l 

3 

I 

To  Head:— 
Eyes  destroyed  
Eye  destroyed 

1 
6 
4 
3 
22 
2 
1 

$45.30 
43.47 
3.75 
20.00 
4.09 
18.00 

$3,300.00 
223.33 

722!  i5 

141.90 
100.00 
35.00 
12.50 

Chest  injured  

1 
49 
24 
8 
3 

$17.50 
fl-81 
6.56 
.50 

Back  injured  

$    36.67 
102.31 
15.62 

Body  injured  

Eye  injured  
Skull  fractured  
Head  injured   • 

Body  burned 

Body  bruised 

Ribs  and  Breast  Bone 
fractured 

1 

500.00 
11.11 

Nose  broken 

Nose  injured 

Ribs  broken  
Stomach  injured. 

9 
1 

.67 

Jaws  broken 

3 
4 
1 

4.67 
1.25 

Face  burned  
Neck  injured 

Groin  injured           .    . 

o 

0.50 

Side  injured  "  
Ruptured             .... 

6 
1 
3 
1 
5 
15 
23 

2 
n 

4 

4 
25 
1 
2 

2.42 
5.00 
3.34 

'20^60 
9.24 
14.46 

2*50 
4.12 
0.58 
1.50 

Head  and  Hands    in- 
jured   

o 

£t 

8 

c\ 

2.00 
5.31 

11.50 
*61.43 

Hip  and  Back  injured. 
Hip  and  Knee  injured 
Hips  injured  
Hip  injured  

133.34 

"tt^ 

43.98 
75.00 
74.76 
18.75 
J12.00 

Head       and       Limbs 
burned  
Head   and    Body   in- 
jured 

Arm  broken  
Arms  burned  
Arm  burned  

Head,       Ankle       and 
Knee  injured. 

1 

r> 

Head   and    Body   in- 
jured   

Arm  injured  

Hand  injured  

Head     and  .  Leg    in- 
jured 

1 

l 
7 
1 
? 

10.00 

Hand  lacerated. 

Wrist  injured 

Back  and  Leg  injured. 
Collar  Bone  broken.  .  . 
Spine  broken  
Spine  injured 

Wrist  broken 

6 
4 

11.41 

18.34 

12.00 
60.00 

**4.16 

Finger  amputated 

Fingers  injured  
Finger  injured 

6 
16 

c 

2.16 
2.25 

ii!ie 

200.00 
10.43 

Shoulders  injured  
Body  and  Arms  burned 
Body    and    Arms    in- 
jured 

17 
1 

1 

4.19 
5.00 

Finger  mashed 

Finger  broken  
Fingers  lacerated  
Finger  lacerated.  .  . 

1 
2 
1 

3.00 
2.00 



Arms  and  Legs  burned 
Arms  and  Hands  in- 
jured   

1 

1 
1 

2.50 

5.00 
2.25 

Thumb  broken 

1 

50.00 

Finger  broken,   Body 
bruised     .   .  . 

1 

1185 

3.00 
8.87 

50.00 
115.03 

Breast  Bone  broken.  . 

Leg  broken  

(Continued  on  page  142) 


EMPLOYERS'  LIABILITY  COMMISSION 


141 


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142 


EMPLOYERS'  LIABILITY  COMMISSION 


INJURY. 

| 

AVERAGE. 

INJURY. 

3 

AVERAGE. 

f| 

s 

2 

c« 

!« 

s 

1 

Legs  injured  

fl 

Foot  broken       .    .  . 

10 
52 
2 

7 
18 
1 

$  2.61 
2.53 
2.50 
12.14 
3.73 

$  31.00 
***13.98 

Leg  injured  

50 

1 
1 

8 
1 

$  1.57 
5.00 

$  16.53 

Foot  injured 

Leg  and  Shoulder  in- 
jured 

Foot  bruised        .... 

Ankle  broken 

29^48 
175.00 
150.00 

Leg  and  Hip  injured.  . 
Knee  injured  

Ankle  injured 

2.31 

3.12 

Ankle  bruised  

Knee  lacerated 

Toes  amputated 

1 
3 

9 

10.00 

Foot  and  Ribs  injured. 
Ribs  broken,  Foot  in- 
jured 

1 

1 
1 

5.00 
5.00 

Toe  amputated  
Toes  broken  

Toe  broken  
Toes  injured 

5 
1 
6 
1 

2.75 
25.00 
1.17 
10.00 

Feet  injured    ... 

525.00 

Feet  hurt           .     . 

1 

200.00 

Toe  injured  
Heel  injured 

Foot  mashed.  .  . 

^ 

*Two  cases  not  complete,  average  6  cases. 

**Settlement,  but  no  amount,  1  case,  average 

fSettlement,  but  no  amount,  3  cases,  average  for  46  cases. 

jj Average  for  14  cases.     1  settlement  not  specified. 

JAverage  for  24  cases.     1  settlement  not  specified. 

^[90  cases  complete.  ***5i  cases  complete.  ft2  cases  complete. 

Investigation  shows  that  out  of  2,397  accidents,  both  fatal  and  non-fatal, 
reported  from  coal  mines  in  Illinois  to  a  certain  Employers'  Liability  Insur- 
ance Company  during  the  completed  years  of  1906  and  1907,  settlement  in  or 
out  of  court  has  been  made  in  343  accidents  and  16  suits  remain  pending. 
Assuming  that  some  indemnity  is  finally  obtained  in  each  of  the  suits  remain- 
ing pending  (which  is  an  unreasonable  assumption)  indemnity  will  finally 
be  paid  in  359  accidents  or  in  but  15%. 


THE   CHERRY  DISASTER. 

The  appalling  disaster  in  the  coal  mine  at  Cherry  in  November,  1909,  is 
significant  in  more  ways  than  one.  Here  was  a  modern  mine,  the  pride  of 
the  owners  and  of  the  industry,  equipped  without  sparing  expense  and  sup- 
posedly far  more  safe  than  mines  generally;  yet  through  a  combination  of 
circumstances,  as  unusual  as  in  the  case  of  the  Iroquois  theatre  disaster, 
257  lives  were  lost 

One  immediate  result  of  this  shocking  calamity  was  the  enactment  of  the 
Fire  Prevention  and  Appliance  Act  and  the  act  establishing  three  rescue  sta- 
tions in  Illinois,  herein  referred  to.  Another  result  was  the  crystalizing  of 
public  sentiment  in  favor  of  a  general  compensation  act,  as  the  question  of 
legal  liability  under  existing  laws  in  such  a  case  is  an  exceedingly  compli- 
cated one  on  account  of  uncertainty  as  to  the  facts  entering  into  the  cause  of 
the  disaster  and  uncertainty  as  to  their  legal  bearing. 

Another  effect  was  the  first  efficient  and  largely  successful  effort  to, 
eliminate  claim  agents  and  "ambulance  chasers"  from  the  arena.  Through 
the  disinterested,  well-directed  efforts  of  Mr.  J.  E.  Williams,  an  ex-coal  miner 


EMPLOYERS'  LIABILITY  COMMISSION 


143 


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3  =  c^  o  o  o  c  o  o^  o  =  o  o  o.     o  o  o  o  o  o  g^ 


144  EMPLOYERS'  LIABILITY  COMMISSION 

and  a  public  spirited  gentleman  of  Streator,  111.,  the  first  conspicuous  applica- 
tion was  made  of  the  principle  of  general  compensation  (following  in  general 
the  lines  of  the  English  compensation  act)  in  the  history  of  the  State. 

To  this  disaster  was  largely  due  the  creation  of  this  Commission. 

The  case  is  also  conspicuous  for  the  amount  of  relief  afforded  in  various 
ways  from  various  sources,  exceeding  anything  before  known  in  the  country. 
The  following  interesting  statistics  relative  to  this  accident  and  succeeding 
events  have  been  furnished  the  Commission : 

Number  of  fatalities 258 

Number  of  widows 167 

Number  of  dependent  children  under  16 382 

Number  of  cases  indemnified  to  August  17th,  disregarding  non- 
fatal  injuries  221 

Death  claims  undisposed  of  August  17th,  1910 36 

Amount  expended  for  direct  indemnity  to  August  17,  1910,  $410,405.96 
Average  indemnity  per  death $1,355.00 

The  claims  still  undisposed  of  consist  of  those  in  which  the  claimants 
and  their  attorneys  have  repudiated  the  settlement  plan  or  agreement,  in 
which  attorneys  have  advised  the  claimants  against  making  settlement  and 
in  favor  of  litigating,  and  cases  of  claimants  who  have  felt  that  because  of 
the  number  of  children  or  dependents  they  should  be  paid  more  than  the  set- 
tlement plan  provided. 

The  St.  Paul  Coal  Co.  has  in  addition,  contributed  $56,055.96  in  coal,  rent, 
milk,  nursing,  medical  attention,  etc.,  and  some  of  these  gratuities  still  con- 
tinue regardless  of  whether  settlement  has  been  made  or  not.  Employes 
of  the  C.  M.  &  St  P.  Ry.  also  raised  for  relief  independently  about  $5,000, 
and  numerous  other  contributions  were  unofficially  made,  for  which  there 
is  no  data. 

A  large  sum  was  paid  for  life  insurance,  both  trade  union  and  fraternal. 
The  United  Mine  Workers  paid  automatically  $150.00  to  the  dependent  of  each 
man  killed.  In  addition  the  following  contributions  have  been  made : 

Appropriation  of  the  Illinois  General  Assembly $100,000.00 

Public  contribution  through  National  Red  Cross  Society..  85,837.96 

Contribution  United  Mine  Workers  of  Illinois 37,466.54 

Contribution  United  Mine  Workers  (International  Body) . .  23,798.71 

Contribution  Illinois  Coal  Operators'  Association 5,000.00 

Public  contribution,  Streator   4,869.21 

Public  contribution,  La  Salle,  not  yet  turned  over  to  Com- 
mission     3,600.00 

Public  contribution,  Peru,  not  yet  turned  over  to  Commis- 
sion      4,300.00 

Public  contribution,  Oglesby  2,101.75 

Contribution  Matthiesen  &  Heggeler  Zinc  Co.,  La  Salle 10,000.00 

Besides  above,  the  Cherry  Relief  Committee  expended  $33,880.27  for 
relief  of  families  from  November  13,  1909,  to  June  21,  1910,  when  the  Com- 
mission began  its  semi-monthly  payments.  About  one-half  this  sum  was  con- 


EMPLOYERS'  LIABILITY  COMMISSION 


145 


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146  EMPLOYERS'  LIABILITY  COMMISSION 

tributed  by  the  United  Mine  Workers  and  the  American  Red  Cross  in  equal 
amounts. 

Early  in  1910  the  Cherry  Relief  Commission  was  created  to  map  out 
and  execute  a  plan  for  the  care  of  dependents  until  the  youngest  chil- 
dren should  reach  the  age  of  self-support  and  to  this  Commission  was  turned 
over  the  various  contributions  last  referred  to  to  the  extent  not  already  ex- 
pended for  temporary  relief.  The  plan  provides  for  a  monthly  pension 
graded  according  to  the  number  of  dependents  except  in  instances  where,  in 
the  judgment  of  the  Commission,  the  paying  of  a  lump  sum  is  preferable. 

The  Commission  consists  of  one  representative  each  of  the  State  of  Illi- 
nois, National  Red  Cross  Society,  United  Mine  Workers  of  America,  and 
Illinois  Coal  Operators'  Association  and  one  representative  for  the  various 
municipal  relief  funds.  Provision  has  also  been  made  for  giving  representa- 
tion to  any  other  body  offering  a  sufficiently  large  contribution  and  desir- 
ing it. 

Comparison  has  been  made  as  to  the  indemnity  received  directly  from  the 
employer  by  50  Cherry  families  on  the  basis  approximately  of  the  general 
compensation  plan  presented  by  this  Commission  and  what  50  families  re- 
ceived for  ordinary  fatal  accidents  elsewhere.  The  comparison  is  graph- 
ically portrayed  in  the  exhibit  found  on  the  next  page. 


EMPLOYERS'  LIABILITY  COMMISSION 


147 


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STEAM   ROADS 

(The  left,  or  even  numbered,  pages  show  the  record  of  individual  cases 
referred  to  in  the  text  found  on  the  right,  or  odd  numbered,  pages.) 

nnnn 

Recognizing  that  the  successful  operation  of  railroads  depends  largely 
upon  the  reciprocal  relations  existing  between  them  and  their  employees, 
and  to  avoid  the  strife  incident  to  controversies  growing  out  of  per- 
sonal injury  accidents  to  employees  sustained  in  the  line  of  their  employ- 
ment, the  railroads,  with  the  co-operation  of  their  employees,  very  early 
adopted  various  schemes  of  Insurance,  Relief  and  Pensions,  which  operate 
automatically,  and  perhaps  no  industry  has  given  more  serious  thought  and 
consideration  to  the  question  of  arriving  at  a  practicable  scheme  of  com- 
pensation than  have  they. 

In  view  of  the  fact  that  figures  pertaining  to  the  number  and  kinds 
of  accidents  resulting  in  personal  injury,  occurring  on  railroads  are  obtain- 
able through  the  published  reports  of  the  State  Railroad  and  Warehouse 
Commission,  to  an  extent  not  equalled  by  the  published  reports  of  any  other 
industry,  the  Commission,  of  necessity,  was  compelled  to  devote  much  of 
its  time  and  resources  to  an  investigation  of  the  railroad  situation,  and  after 
such  investigation,  it  is  of  the  opinion  that  a  compensation  measure,  fair 
and  equitable  to  the  railroads  and  their  employees,  is  necessary  in  view 
of  all  the  facts. 

It  is  the  purpose  of  this  section  to  briefly  indicate  what  those  facts  are. 

The  following  tables  show  the  railroad  employment  in  this  State  for 
five  years  and  the  number  of  fatal  work  accidents  during  the  same  period: 


FATAL  ACCIDENTS— STEAM  RAILROADS— 5  Years 


EMPLOYES 

*1904 

1905 

1906 

1907 

1908 

Average 
per  Year 

Trainmen  

159 

173 

164 

121 

1541 

Switch  Tenders,  Cross- 
ing Tenders,  Watch- 
men. .  . 

16 

26 

-  40 

28 

27* 

Stationmen  

5 

8 

7 

3 

5} 

Shopmen 

17 

12 

12 

13 

131 

Trackmen.  . 

65 

59 

70 

55 

61 

Telegraph  Employes. 

1 

3 

1 

2 

If 

Other  Employes.  .  . 

34 

52 

80 

50 

531 

Total.  .  . 

326 

297 

333 

374 

272 

*Classification  by  occupation  not  available. 


EMPLOYERS'  LIABILITY  COMMISSION 


149 


NUMBER  OF  MEN  EMPLOYED 


YEAR 

NUMBER  OF  ROADS 

NUMBER  OF  MEN 

1904 

118 

QQ  1KO 

1905 

125 

107  *>*!*> 

1906 

137 

m702 

1907 

147 

120  230 

1908  

150 

106  017 

These  preliminary  tables  were  taken  from  the  reports  of  the  State  Rail- 
road and  Warehouse  Commission  and  follow  the  same  classifications:  Rail- 
road men  engaged  in  the  active  operation  of  trains  are  classed  as  "train- 
men." 

The  relationship  between  the  number  of  fatalities  and  the  number  of 
men  employed  is  interesting.  According  to  these  tables  one  man  was  killed  in : 

1904 for  each  304  employed 

1905 for  each  362  employed 

1906 for  each  335  employed 

1907 for  each  321  employed 

*1908 for  each  389  employed 

*These  figures  do  not  include  the  six  postal  clerks,  express  messengers 
and  Pullman  employees  reported  by  the  Railroad  and  Warehouse  Commission. 

While  these  figures  show  a  marked  decrease  in  the  number  of  employees 
killed  in  proportion  to  the  number  of  employees,  in  the  year  1908  as  com- 
pared with  the  preceding  years,  yet  it  must  be  conceded  the  number  is  still 
high. 

The  following  table  briefly  summarizes  the  totals  of  employees  killed  and 
injured  for  the  five-year  period  chosen: 


STEAM  RAILROADS— 5  Years 


1904 

1905 

1906 

1907 

1908 

Employes  killed                    

OOA 

007 

qqq 

374 

272 

"{"Employes  injured.             

2,800 

3,270 

4,010 

4,888 

4,704 

Total.  .  .           .         

3,126 

3,567 

4,343 

5,262 

4,976 

Total  number  fatal  accidents — five  years 

Total  number  non-fatal  accidents — five  years. . 

Average  number  of  deaths  per  year  

Average  number  of  non-fatal  accidents  per  year. 


1,608 
19,672 

321$ 
3,934| 


•[•Official  figures  for  1908  show  apparent  error  of  100  in  injuries. 


150 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION 


151 


The  following  table  shows   the  occupations  of   the  railroad  employees 
injured  during  the  period  under  discussion : 

NON-FATAL  ACCIDENTS— STEAM  RAILROADS— 4  Years 


EMPLOYES 

1904 

1905 

1906 

1907 

1908 

Average 
per  Year 

Trainmen  

1490 

1  966 

2  igg 

1  993 

1  903? 

Switch  Tenders,  Cross- 
ing Tenders,   Watch- 
men. .  . 

92 

134 

QQ 

115 

109$. 

Stationmen 

273 

332 

453 

353 

352  1 

Shopmen 

451 

328 

663 

792 

558i 

Trackmen  

554 

580 

818 

565 

629J 

Telegraph  Employes.  .  . 

6 

7 

11 

g 

8J 

404 

663 

679 

777 

630| 

Total  .  . 

**2  800 

3270 

4  010 

4  888 

4  604 

**Contains  other  than  employes. 

The  enforcement  of  the  safety  appliance  laws  and  the  consequent  installa- 
tion of  safety  devices  from  time  to  time,  together  with  the  efforts  being 
voluntarily  puk  forth  by  the  railroads  themselves,  will  undoubtedly  reduce 
the  number  of  accidents  resulting  in  injury  and  death  in  the  future,  yet 
it  is  obvious,  by  reason  of  the  natural  hazard  of  the  industry,  how  deeply 
concerned  should  be  the  railroads  and  their  employees  with  the  proposed 
plan  of  compensation,  as  a  reference  to  the  following  classification  will  dis- 
close that  the  greatest  number  of  fatal  accidents  were  of  the  kind  which 
ordinary  mechanical  devices  cannot  be  expected  to  check  and  which  no 
liability  law  can  reach. 

For  example:     Those  falling  from  trains,  those  run  over,  etc. 

Attention  is  called  to  the  cases  listed  in  the  following  tables  as  due  to 
causes  "other  than  the  movement  of  trains."  These  figures  indicate  that 
railroads  have  not  only  accidents  peculiar  to  themselves,  but  in  their  shops 
they  have  the  usual  hazards  of  ordinary  industry. 

FATAL 


KIND  OF  ACCIDENT 

*1904 

1905 

1906 

1907 

1908 

Movement  of  Trains,  etc. 
Coupling  and  Uncoupling  

27 

25 

29 

28 

12 

Collisions     .          .              

66 

39 

34 

21 

18 

Derailments  

25 

22 

15 

27 

18 

Parting  of  Trains 

1 

1 

2 

Locomotives  or  Cars  Breaking 
Down                                 .  .  . 

5 

3 

1 

2 

Falling  from  Trains,  etc  
Jumping  On  or  Off  Trains,  etc  .  . 
Struck  by  Cars,   Locomotives, 
$tc 

72 

36 
12 

119 

48 
.18 

128 

45 
13 

161 

32 
9 

129 

Overhead  Obstructions       

7 

4 

18 

12 

4 

Other  Causes        

152 

24 

23 

33 

24 

Other  than  the  Movement  of  Trains 

11 

16 

32 

28 

Total  

349 

297 

333 

374 

278 

*Contains  other  than  employes 

?. 

152 


EMPLOYERS'  LIABILITY  COMMISSION 


EMPLOYERS'  LIABILITY  COMMISSION 


153 


NON-FATAL 


KIND  OF  ACCIDENT 

1904 

1905 

1906 

1907 

1908 

Movement  of  Trains,  etc. 
Coupling  and  Uncoupling.  .  . 

235 

219 

249 

299 

ory. 

Collisions  ...          .    . 

493 

206 

269 

256 

010 

Derailments  

156 

99 

105 

128 

ion 

Parting  of  Trains 

18 

26 

18 

oq 

Locomotives  or  Cars  Breaking 
Down 

37 

42 

3 

10 

Falling  from  Trains,  etc  
Jumping  On  or  Off  Trains,  etc  .  . 

327 

208 
224 

341 
294 

352 

300 

395 
297 

Struck  by  Cars,   Locomotives, 
etc  

120 

203 

186 

164 

Overhead  Obstructions  

42 

36 

77 

62 

63 

Other  Causes  

248 

687 

890 

1,042 

1  045 

Other    than    the    Movement    of 
Trains  

1,870 

1,416 

1,514 

2,237 

2  160 

Total.  .  . 

*3,371 

3,270 

4,010 

4,888 

4704 

*Contains  other  than  employes. 

So  far  we  have  dealt  with  averages  and  tables  of  figures  recognized  as 
fairly  authentic  and  so  presented  by  State  officials. 

Inasmuch  as  the  name  of  the  employee,  the  designation  of  the  railroad 
and  the  character  of  the  injury  suffered  must  be  filed  with  the  Railroad  and 
Warehouse  Commission  at  Springfield,  the  reasonable  assumption  is  that 
the  data  is  correct -so  far  as  it  goes.  But  unfortunately  the  tables  supplied 
by  the  Railroad  and  Warehouse  Commission,  for  the  purposes  of  this  investi- 
gation, are  deficient  in  this,  that  they  do  not  show  what  amounts  were  paid 
by  the  railroads  in  death  cases,  and  there  is  no  other  public  source  from 
which  to  obtain  this  information.  However,  the  Commission  is  able  to 
supply  this  deficiency,  as  per  the  table  furnished  by  general  managers  of 
the  railroads,  and  found  on  left-hand  pages  of  report,  beginning  page  150. 

According  to  this  table  the  railroads  of  Illinois,  exclusive  of  benefit, 
insurance  and  pension  schemes,  paid  in  settlement  of  death  cases  of  employees, 
the  sum  of  $165,210,  or  an  average  of  $1,180  for  each  fatality. 

In  turning  from  the  fatal  accidents  to  the  non-fatal,  exact  comparisons 
become  more  difficult  and  averages  less  correct.  But  the  following  table 
will  not  be  without  interest  It  classifies  the  injuries  and  indicates  the 
average  amounts  in  compensation  which  the  various  injuries  were  paid. 


154 


EMPLOYERS'  LIABILITY  COMMISSION 


88888  :888  •SBBBSB  :S888888S888 
gsgg'g  iggg  i§8ll8S  :88888g88S88 


g  :   :   : 


" 


EMPLOYERS'  LIABILITY  COMMISSION 


155 


RAILROADS— NON-FATAL 


NATURE  OF 
INJURY 

Total  Number  of  Cases. 

i 

i 

0> 

1 

Wages  Per  Day. 

j 

Surgical  and  Medical. 

Compensation. 

, 

I 

1 

1 
1 

1 

Scalp  wound  
Scalp,  hip  and  hand.. 
Head  injured  

6 
1 
6 

1 
1 
1 
1 

6 
1 
2 

1 
1 
1 

66 
18 
126 

56 
76 
17 

4 
1 
3 

1 
1 
1 
1 

1 
1 

1 

$4.01 
2.80 
3.16 

4.42 
3.10 
3.50 
1.65 

3.65 
2.25 

2 
1 
3 

$       4.00 

4 
1 
1 

1 

$    26.22 
11.50 
38.00 

-200.00 

3 

27.00 

$    42.00 

Head,  back  and  knee 
injured  
Head,   shoulder  and 
arms  injured  
Head  and  neck  in- 
jured 

1 

320.00 

1 

25.50 

Head  and  shoulders 
inj  ured 

1 
2 

75.00 
43.00 

Face  injured  

2 

1 
1 
1 
3 
1 
1 
1 
8 
2 
1 

1 

1 
1 

1 

1 
1 
1 

3 

7 

14 
16 
6 
27 

1 

15.00 

1 
1 

8.00 
7.50 

Face  and  hands 
burned  :  
Face  and  eye  scalded 
Ear  lacerated 



Eye  injured  
Jaw  broken  
Jaw  injured  
Neck  injured 

2.35 

2 
1 

2.00 
39.00 

1 

i 
i 

2 

1 

40.00 

27^00 
22.00 
22.00 
168.00 

2 
1 

6.00 
28.00 

1 
1 
6 
1 

1 

1 
1 

55 
19 
20 
96 

78 

30 
15 

1 
1 
3 
2 

1 

1 
1 

2.55 
4.44 
2.80 
3.50 

2.68 

2.70 
4.06 

Back  injured 

7 
2 
1 

6.00 
74.11 
86.75 

Concussion  of  spine  .  . 
Back  and  groin  inj'd 
Back    and   stomach 
injured 

1 

1 

2,500.00 
450.00 

1 
1 

45.00 
3.46 

Back    and   shoulder 
inj  ured 

i 

4 

i 
i 

2 
2 
4 
1 
7 

Collar  bone  broken 

59.40 
"il.'lO 

49^00 
165.00 
82.80 
122.25 
*  2,500.  00 
153.50 

Shoulder  blade  br'kn 
Shoulder  injured.  .  .  . 
Ribs  broken  
Rib  broken  
Internal  injuries.  .  .  . 
Abdomen  injured.  .  . 
Side  injured  
Body  injured  . 

1 
9 
3 
3 
2 
4 
4 
13 
1 
11 

1 
5 
1 
15 
7 
1 
1 
1 
1 

1 
1 

1 
6 
3 
2 
1 
3 
2 
12 

6 

1 
3 

1 
9 

7 

1 

28 
22 
42 
11 
42 
31 
16 
26 

51 
34 
780 
73 
31 
240 
30 
125 
18 

25 
92 

1 
5 
2 
1 
2 
4 
3 
8 

1 
4 
1 
8 
7 
1 
1 
1 
1 

1 
1 

2.02 
3.23 
2.75 
3.41 
3.00 
2.57 
2.89 
3.22 

3.78 
2.93 
3.74 
3.00 
2.71 
4.23 
1.80 
3.34 
1.80 

2.10 

3.88 

1 
5 
1 
1 
2 
1 
1 
8 
1 
9 

1 
2 

28.00 
10.00 
10.00 
3.00 
24.63 
12.00 
52.50 
26.08 
27.42 
21.46 

12.25 
43.13 

1 

4 
2 
1 
1 
3 
1 
6 

28.00 
26.00 
137.50 
21.00 
57.00 
40.13 
9.50 
24.40 

Body  scalded. 
Body  bruised  
Hands,  hip  and  chest 
inj  ured 

1 
3 
1 

4 
7 

59.00 
79.50 
1,273.00 
342.65 
26.57 

Hip  injured  

1 

Y 

30.00 
232.43 

Heart  lesion 

Arm  broken  

7 

37,94 

Arm  bruised.  
Arm  and  body  inj'd. 
Arm  and  hand  inj'd. 
Arm,  face  and  hip  .  . 
Arm  and  hip  
Elbow     and     finger 
injured  
Wrist  dislocated  

1 

1 

17.50 
145.00 

125.00 

1 

184.00 

*0ut   of   court   after  suit.                                                                  (Table  continued  on  page  157.; 

156 


EMPLOYERS'  LIABILITY  COMMISSION 


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157 


RAILROADS— NON-FATAL— Continued 


NATURE  OF 
INJURY 

|  Total  Number  of  Cases. 

, 

Time  Lost—  Days. 

, 

j 

1 

( 

Surgical  and  Medical. 

Compensation. 

, 

3 

£ 

, 

I 
1 

Wrist  joint  crushed  . 
Wrist  injured  

1 

7 
18 
4 
1 
5 

1 

1 

5 
16 
4 
1 
5 

63 
24 
16 
57 
135 
38 

1 

4 
12 
4 

1 
4 

1 
18 
11 
1 

$2.50 
3.12 
2.55 
3.11 
3.59 
2.77 

3.74 
2.90 
1.90 
3.50 

i 

6 
3 
1 

1 

1 
3 
5 

$    4.00 
7.67 
44.22 
5.25 
33.25 

42.00 
16.00 
20.15 

5 
11 
4 

4 

16' 
5 
1 

$  48.00 
30.00 
81.25 

2 
4 

$       15.73 
29.00 

Hand  injured  

Hand  crushed  

Fingers  amputated  . 
Finger  amputated.  . 
Fingers      crushed 
(both  hands)  .  .    . 

1 

244.00 

38.40 

68.66 
10.50 
30.00 

2 

4 

Suit 
270.00 
46.25 

Fingers  crushed.  .  .  . 
Fingers  injured  
Thumb  broken  
Thumb  crushed  .... 
Finger  broken,  hand 
injured  

20 
16 
1 
1 

1 
2 
5 

20 
12 
1 
1 

1 
1 

44 
14 
30 
10 

1.20 
34 

1 

12.50 

1 
1 
3 

2.47 
2.90 
1.80 

1 
1 

180.00 
17.00 

Finger  broken  
Leg  amputated 

1 
2 

6 
2 
3 
3 
6 

5 

7 

69.00 
213.91 
590.00 
107.47 
62.00 
44.60 
5.25 
9.11 

20.83 
10.12 

1 
3 

111.00 
2,050.00 

Leg  fractured  (com.) 
Leg  broken  

1 
10 
2 
8 
9 
14 

8 
23 
1 
6 
11 
8 
9 
1 
6 
6 
1 
1 
1 

1 
2 
2 
8 
2 
5 

5 
10 
1 
3 
8 
3 
4 

4 
3 
1 
1 
1 

547.00 
201.75 
423.00 
38.13 
19.50 
29.50 

129.00 
31.40 
471.00 
268.20 
54.25 
15.00 
12.63 

82^17 
563.25 
52.00 
34.50 

2 
2 

8 
8 
13 

6 
20 

220 
197 
42 
11 
15 

90 
16 

2 
2 
8 
4 
5 

5 
8 
1 
4 
9 
5 

1.83 
3.86 
2.87 
2.19 
3.36 

2.93 
3.62 
2.75 
2.36 
2.57 
2.40 
1.76 

4 

337.00 

Legs  seriously  inj'd. 
Legs  injured  
Legs  hurt  

2 
3 

2 
6 

52^50 
126.00 

245.00 
58.04 

Knee  injured  

Ankles  seriously 
sprained  

Ankles  sprained.  .  .  . 
Foot  amputated.  .  .  . 
Foot  crushed  
Foot  injured 

3 

10 
7 
8 
1 
5 
5 
1 
1 
1 

54 
39 
13 
16 
110 
38 
25 
387 
45 
23 

3 
2 
4 
2 
1 
3 
2 
1 

71.00 
18.00 
5.31 
13.50 
97.71 
29.00 
47.25 
121.39 

1 
3 
3 
1 

1 
1 
2 

2,850.00 
58.50 
18.34 
56.00 
1.00 
650.00 
25.00 

Foot  bruised  .... 

Foot  hurt  
Toe  amputated  
Toes  crushed  

6 
1 
1 
1 

2.34 
2.74 
2.42 
3.47 
2.68 

Toes  injured  
Heel  crushed 

Heel  injured 

Heel  hurt.  . 

Having  this  far  discussed  the  records  of  the  railroads  of  Illinois  in 
the  matter  of  the  adjustment  of  personal  injury  matters  between  them  and 
their  employees,  so  far  as  the  public  documents  of  the  State  and  the  records 
furnished  by  the  railroads  will  permit,  and  having  shown  the  uncertainty 
in  the  matter  of  compensation,  as  it  exists  under  present  conditions, 
the  Commission  endeavored  to  outline  its  conception  of 'an  automatic  plan 
of  compensation. 

The  general  principles  of  the  plan  have  been  discussed  elsewhere,  and 
it  is  sufficient  to  close  this  report  of  railroad  data  with  such  additional  data 
as  will  enable  any  one  to  estimate  approximately  what  the  compensation 
would  amount  to  for  the  occupational  groups  in  the  railroad  service. 

The  table  of  wages  found  on  page  161  will  afford  assistance. 


158 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION 


159 


COST  TO  RAILROAD  COMPANIES. 

The  average  daily  wages  for  the  year  1908  was  $2.43,  making  the  average 
yearly  wage  the  sum  of  $729  (300  days  at  $2.43)  ;  the  compensation  in  case 
of  death,  according  to  the  terms  of  the  plan  considered  by  the  Commission, 
would  be  three  times  this  amount,  or  the  sum  of  $2,187.  This  is  based  on 
the  average  wages,  but  as  the  hazard  is  unequally  distributed  it  is  probable 
•that  the  average  amount  of  compensation  for  death  would  be  about  the  sum 
of  $2,750. 

For  illustration,  take  the  report  of  killed  and  injured  for  the  year  1908. 
Assuming  that  of  the  4,704  injured,  1,000  were  of  a  character  to  entitle  them 
to  compensation  as  in  permanent  disability  cases  and  3,604  to  thirty  days' 
compensation.  Further  assuming  that  the  sum  of  $2,750  represents  the 
average  amount  to  be  paid  in  death  cases,  we  have  the  following  schedule, 
based  upon  the  experience  of  that  year : 

272  Death  Cases,  at  $2,750 $  748,000.00 

1,000  Permanent  Disability  Cases,  at  50  per  cent  of  four 

years'  wages  at  $729  per  year 1,458,000.00 

3,604  Temporary  Disability  Cases  (30  days),  at  50  per 

cent  of  $2.43  per  day 131,365.80 


160 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION 


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2    1    I   I   I    I   I    §-  !   II  1  I    1 


E  LEVATE  D  AN  D 
ELECTRIC  RAILROADS 

Compilation  does  not  include  surface  urban  railroads  except  in 
tables  dealing  with  individual  fatal  accidents,  on  pages  165  and  166, 
where  twelve  fatal  accidents  to  city  surface  railway  employes  are 
included  and  so  designated.  ::  ::  :;  ::  ::  ::  :: 

DDDD 


*Total  number  of  fatal  cases 36 

Total  recovery  (14  cases) $10,150 

Average  recovery  for  all  fatal  cases $406 

Cases  pending  in  court 

Cases  recovering  out  of  court,  amount  given 

Cases  recovering  out  of  court,  amount  not  given 

Jury  disagreed,  case 

No  recovery,  cases 

Amount  recovered  in  court  cases  to  date 


14 

2 
1 

10 
0 


The  following  table  is  compiled  from  the  official  records  found  in  tl 
office  of  the  Railroad  and  Warehouse  Commissioners.    The  classifications  us 
by  commission  are  utilized  throughout  the  report  and  may  be  verified  throi 
a  reading  of  the  tables  found  in  the  printed  reports  of  that  body.     The  tabl< 
showing  settlements  by  the  several  corporations  were  compiled  under  the 
rection  of  the  Liability  Commission. 

ELEVATED  AND  ELECTRIC  RAILROADS-5  years 


32  Roads. 

37  Roads. 

43  Roads. 

45  Roads. 

55  Roads. 

1904 

1905 

1906 

1907 

1908 

Fatal  accidents  
Non-fatal  accidents  

2 

139 

7 
77 

10 
97 

19 
149 

16 
193 

Total  

141 

84 

107 

168 

209 

Total  number  fatal  accidents,  five  years,  54. 
Total  number  non-fatal  accidents,  five  years,  655. 
Average  number  of  fatal  accidents  per  year,  10$. 
Average  number  of  non-fatal  accidents  per  year,  131. 

The  year  1904,  with  thirty-two  roads  reporting,  shows  2  fatal  and 
non-fatal  accidents  among  3,896  employes,  while  the  year  1908  gives  21  fat 
and  193  non-fatal  accidents  for  6,877  workmen,  indicating  an  increasi] 
hazard  as  the  industry  develops.  Wages  advanced  from  an  average  of  $2.( 
per  day  to  $2.16  per  day. 

*Twenty-four  elevated  and  interurban  employes  and  twelve  urban  si 
face  railway  employes.     Reports  cover  a  period  varying  from  one  to  seven 
years. 


EMPLOYERS'  LIABILITY  COMMISSION 


163 


ELECTRIC  RAILWAYS— 5  Years.    Wages  per  Day.     Number  of  Employes. 


32  Roads. 

37  Roads. 

43  Roads. 

45  Roads. 

55  Roads. 

1904 

1905 

1906 

1907 

1908 

Wage. 

No. 

Wage. 

No 

Wage. 

No. 

Wage. 

No. 

Wage. 

No. 

!  Train  Clerk  

$2.29 
1.57 

1.97 
1.66 
1.68 
2.33 
1.86 

1.91 

51 

288 

660 
120 
21 
602 
184 

54 

$2.36 
1.55 

2.06 
1.78 
1.63 
2.29 
2.14 

1.72 

60 
365 

796 
405 
68 
741 
11 

64 

$2.57 
1.63 

2.11 
2.48 
1.72 
2.33 
1.89 

1.94 
1.80 
2.48 
1.79 
2.04 
3.40 
1.91 

1.92 
2.46 
2.27 
1.63 

72 
389 

1,026 
101 
49 
1,000 
34 

86 
436 
* 

885 
96 
89 
99 

303 
130 
638 
904 

$2.57 
1.63 

2.47 
2.47 
1.60 
2.37 
1.99 

1.79 
1.85 
2.47 
1.82 
2.54 
3.24 
1.96 

2.90 
2.41 
2.38 
1.72 

81 
367 

1,024 
189 
62 
983 
17 

78 
445 
* 

873 
88 
65 
74 

335 
110 
559 
871 

$2.57 
1.72 

2.27 
2.52 
1.56 
2.49 
1.91 

1.89 
1.98 
2.52 
1.78 
2.51 
3.15 
2.04 

2.00 
2.41 
2.70 

1.78 

126 
541 

1,112 
193 
53 
1,075 
29 

91 
452 

Station  Agent  
Conductors    and    Yard 
Foremen 

Other  Trainmen 

1  -Hostlers 

1  Motormen  

Starters  

Watchmen  and  Tower- 
men  

Guards  

Switchmen  

2.22 
1.83 
1.99 
3.03 
1.90 

1.92 
2.30 
2.28 
1.83 

140 
431 
94 
50 
61 

176 
72 
243 
649 

2.26 
1.73 
1.90 
3.26 
1.97 

1.93 
2.49 
2.23 
1.65 

126 
646 
60 
80 
81 

225 

88 
481 
528 

Roadmen  

1,102 
122 
44 
75 

356 
111 
671 

724 

Linemen  

Engineers 

Firemen 

Other     Power     House 
Employes  

Electricians 

Machinists,  etc 

All  Others  ... 

Average  per  day  .  . 

$2.02 

$1.98 

$2.03 

$2.15 

$2.16 

*Classified  with  trainmen. 

Employes  1904,  3,896;  employes  1905,  4,825;  employes  1906,  6,337;  employes  1907, 
6,221;  employes  1908,  6,877. 

More  employes  are  killed  by  being  struck  by  cars  than  from  any  other 
single  cause,  22  being  killed  in  that  manner.  Five  were  killed  in  collisions, 
three  in  coupling  or  uncoupling,  two  men  fell  from  trains,  derailments 
claimed  two  victims,  two  more  lost  their  lives  jumping  on  or  off  cars,  one 
employe  was  killed  by  an  overhead  obstruction,  fifteen  died  from  unspecified 
accidents,  and  two  were  killed  in  1904,  but  no  cause  is  specified— a  total  of  54. 

The  growing  nature  of  the  industry  is  best  illustrated  by  a  comparative 
showing  of  the  pay  rolls  for  the  years  1904  to  1908,  both  inclusive.  Wages 
for  employes  other  than  employes  of  the  general  offices  are  given: 


PAY-ROLLS   FOR  FIVE  YEARS 

1904  $2,515,926.69 

1905     '.  •  •  3,029,025. 14 

1906  .  3,525,683.53 

1907..  4,036,930.00 

1908  4,468,699.00 


Men  engaged  in  the  operation  of  trains  suffered  39  fatal  and  412  non- 
fatal  accidents,  while  employes  engaged  in  other  work  suffered  14  fatal  and 
109  non-fatal  injuries  during  the  four  years  for  which  we  have  figures. 


164 


EMPLOYERS'  LIABILITY  COMMISSION 


FATAL 


EMPLOYES 

32  Roads. 
*1904 

37  Roads. 
1905 

43  Roads. 
1906 

45  Roads. 
1907 

55  Roads. 
1908 

Trainmen 

3 

5 

6 

7 

Switch  Tenders 

2 

1 

StEtion  Men 

1 

I 

Shop  Men 

1 

1 

1 

Track  Men                             .  .    . 

1 

4 

... 

Other  than  Movement  of  Trains  . 

1 

1 

6 

8 

Totals.  .  . 

2 

6 

9 

18 

19 

KIND  OF  ACCIDENT. 


Collisions  '  

1 

4 

1 

Derailments  !  

1 

1 

Falling  from  Trains,  etc  

2 

Jumping  on  or  off  Trains  

1 

1 

Struck  by  Cars,  Locomotives,  etc  .    

1 

4    - 

5 

12 

Overhead  Obstructions 

1 

Other  Causes                                      1 

3 

2 

6 

4 

Totals  !       §2 

6 

9 

18 

19 

*Total  accidents  by  occupations  not  available. 


§  Cause  of  death  not  gn 


Employes  injured,  with  causes  specified,  show  37  from  coupling  oj 
tions,  37  from  collisions,  24  from  derailments,  49  injured  by  jumping  on 
off  trains,  or  by  falling  from  same,  11  suffered  from  overhead  obstructic 
and  158  accidents  are  recorded  where  cause  is  not  given.  Men  not  engaged 
the  movement  of  trains  are  credited  with  178  injuries. 

NON-FATAL 


EMPLOYES 

32  Roads. 
*1904 

37  Roads. 
1905 

43  Roads. 
1906 

45  Roads. 
1907 

55  Roads.* 
1908     ; 

Trainmen 

30 

36 

59 

64 

Switch  Tenders,  Crossing  Tenders, 
Watchmen 

3 

2 

I 

Station  Men                               .  . 

2 

1 

6 

8 

Shop  Men                                 .... 

21 

13 

21 

Track  Men                         

10 

26 

23 

47 

Telegraph  Employes    

2 

Other  Employes  

14 

18 

38 

39   j 

Totals  

139 

77 

97 

149 

198    3 

KIND  OF  ACCIDENT. 


Coupling  and  Uncoupling 

Collisions 

Derailments 

Parting  of  Trains 

Falling  from  Trains,  etc 

Jumping  on  or  off  Trains,  etc .... 
Struck  by  Cars,  Locomotives,  etc.. 

Overhead  Obstructions 

Other  Causes 

Other  than  the  Movement  of  Trains 
Totals. . . 


139 


4 
3 

32 
21 


77 


3 
7 
5 

39 
20 


97 


6 
11 
19 


12 

6 

7 

2 

37 

49 


149 


""Specific  data  for  the  year  1904  are  not  available. 


EMPLOYERS'  LIABILITY  COMMISSION 


165 


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ILLINOIS  MANUFACTURERS' 
ASSOCIATION 


nnna 

For  the  purpose  of  comparing  the  cost  to  the  manufacturing  interests  of 
the  State,  under  existing  liability  laws,  with  the  cost  under  a  Workmen's 
Compensation  Act,  the  following  inquiry  sheet  was  sent  to  the  members  of 
the  Illinois  Manufacturers'  Association. 


QUESTION  SHEET. 

The  purpose  of  the  following  questions  is  to  determine  the  cost  of  indus- 
trial accidents  under  the  Employers'  Liability  Laws  proposed  in  New  York 
and  Wisconsin,  and  to  compare  this  cost  with  your  outlay  for  the  same  pur- 
pose, under  existing  conditions. 

Questions  1  to  5  inclusive  are  intended  to  provide  the  information  nec- 
essary to  determine  cost  to  you  under  such  laws  as  New  York  and  Wisconsin 
propose  to  enact.  Answers  to  these  questions  should  cover  all  industrial 
accidents,  no  matter  what  the  cause,  so  long  as  they  were  met  by  employes  in 
the  course  of  their  duties.  Answers  should  be  as  complete  as  possible,  and 
any  further  information  will  be  welcomed. 

•  1.  State  the  period  which  the  several  answers  cover  (2  years,  1  year, 
or  four  months).  Period  covered  should  be  as  long  as  possible,  in  order  to 
develop  the  most  dependable  averages;  and  answers  to  all  questions  should 
be  for  the  same  period. 

2.  How  many  fatal  accidents  have  you  had  during  this  period,  and  what 
are  the  average  yearly  earnings  of  the  employes  killed?    If  yearly  earnings 
are  not  available,  state  average  daily  earnings. 

3.  How  many  accidents  have  you  had  during  this  period  which  resulted 
in  total  disability— that  is,  in  an  injury  which  permanently  prevented  the 
employe  from  following  a  gainful  occupation?     (Loss  of  both  feet  or  legs, 
loss  of  both  arms  or  hands,  loss  of  both  eyes,  injury  to  skull  resulting  in 
loss  of  memory,  injury  to  spine  resulting  in  permanent  or  partial  paralysis.) 
State  average  yearly  earnings  of  each  employe  so  injured,  or  where  yearly 
earnings  are  not  available,  give  average  daily  earnings. 

4.  How  many  accidents  during  this  period  resulted  in  partial  disability — 
that  is,  in  an  injury  which  resulted  in  permanently  reducing  the  earning 


168  EMPLOYERS'  LIABILITY£COMMISSION 

capacity  of  the  employe?  (Loss  of  one  foot  or  leg,  loss  of  one  hand  or  ai 
loss  of  one  eye,  permanent  crippling  from  burns  or  muscular  injury.)  Stat< 
the  average  yearly  earnings,  or  if  these  are  not  available,  state  average  dail; 
earnings  of  each  employe  so  injured.  Also  state  character  of  disability  ii 
each  case,  to  give  opportunity  for  estimate  of  cost. 

5.  How   many   accidents   occurring  in   your   establishment   during   this 
period  resulted  in  the  loss  of  two  weeks'  time  or  more.     Give  total  loss  of 
time  for  each  employe  so  injured,  also  average  yearly  or  average  daily  earn- 
ings of  each. 

This  answer  should  exclude  all  those  cases  covered  in  Answers  2,  3  and  4. 

Answers  to  following  questions  are  necessary  to  compute  your  present 
cost  of  insuring  against  and  caring  for  injured  employes. 

6.  Do  you  carry  Employers'  Liability  Insurance?    If  so,  please  give  the 
cost  of  same  during  the  period  covered  in  your  Answers  1  to  5. 

7.  Do  you  have  a  mutual  aid  association  for  the  benefit  of  your  em- 
ployes  to   which  you   contribute?    If   so,   how   much   has   this   contribution 
amounted   to  during  the  period  covered  in  your   answers  to   the  previous 
questions? 

8.  Have  you  made  any  other  expenditures  for  injured  employes  during 
this  period,  either  in  providing  medical  care,  or  payment  of  wages  during  the 
period  of  disability?     If  so,  please  give  the  total  amount  of  such  expenditure. 

Of  the  165  replies,  twenty-four  were  rejected  because  they  were  incom- 
plete, and  from  the  answers  of  the  remaining  141,  the  following  tables  were 
compiled. 

The  scale  of  compensation  on  which  these  tables  are  based  is  as  follows : 

1.  For  temporary  disability  existing  in  bona  fide  form  for  more  than 
two  weeks,  compensation,  beginning  on  the  day  the  injury  was  received,  equal 
to  one-half  the  weekly  wages. 

2.  For  the  loss  of  one  hand  or  one  foot,  one  and  one-half  years'  wages, 
but  not  less  than  $750,  nor  more  than  $1,500.     For  the  loss  of  one  or  more 
fingers,  three  months'  wages  for  each  finger. 

3.  For  the  loss  of  one  eye,  nine  months'  wages,  but  not  less  than  $375 
nor  more  than  $750. 

4.  For  complete  disability  which  renders  the  employe  wholly  and  per- 
manently  incapable  of  work,   four  years'   wages,  but  not  less   than  $2,000 
nor  more  than  $4,000. 

5.  For  other  injuries  of  a  permanent  character  the  scale  of  compensa- 
tion has  been  determined  as  nearly  as  possible,  according  to  the  loss  in  earn- 
ing capacity. 

ANSWERS  RECEIVED. 

The  "loss  of  time  in  days"  of  Table  No.  1,  covers  the  loss  due  to  tem- 
porary disability  only,  the  computations  for  permanent  disability  and  death 
being  given  in  Table  No.  2. 


EMPLOYERS'  LIABILITY  COMMISSION 


The  cost  of  medical  and  surgical  attendance  and  of  artificial  limbs, 
crutches,  trusses  and  supporting  apparatus,  provided  by  the  Act  which  the 
Commission  has  in  mind  is  estimated  in  Table  No.  3. 

Only  16  of  the  141  members  reporting  have  had  fatal  accidents,  and  23 
of  the  total  number  of  32  deaths  reported  are  confined  to  7  members.  Of 
these  one  is  a  dredging  contractor,  in  whose  operations  five  deaths  have  oc- 
curred in  the  past  two  years. 

The  reports  submitted  to  the  Commission  cover  periods  varying  from 
four  months  to  twelve  years,  but  in  all  cases  the  cost  to  the  employer  and 
the  compensation  to  be  paid  to  the  employe  have  been  reduced  to  an  annual 
basis. 

Of  the  141  members,  seventeen  contribute  to  Mutual  Aid  Societies,  in 
addition  to  carrying  liability  insurance,  and  eighty-four  provide  medical  serv- 
ices in  case  of  accident. 

The  tables  do  not  cover  reports  from  the  large  steel  plants,  nor  the  large 
packing  plants,  and  with  the  exception  of  the  two  cement  mills  and  the 
dredging  contractor,  they  represent  the  accidents  in  the  non-hazardous  shops 
of  the  State. 

It  is  evident  from  a  careful  study  of  the  tables  that  the  liability  insur- 
ance companies  do  not  classify  their  risks  with  any  great  care,  but  that  the 
less  hazardous  risks  are  made  to  carry  the  more  hazardous  ones.  Such 
being  the  case,  there  is  no  strong  pecuniary  incentive  for  the  installation 
of  safeguards  and  the  removal  of  unsafe  conditions  on  the  part  of  thought- 
less employers. 

With  the  adoption  of  an  Act  providing  certain  and  definite  compensation 
for  each  accident,  no  matter  how  received,  the  time  and  money  now  spent  in 
providing  for  defense  in  case  of  litigation  would  without  question  be  applied 
to  the  improvement  of  conditions,  and  to  periodical  inspection.  The  liability 
insurance  companies  under  an  Act  providing  for  a  definite  scale  of  compen- 
sation would  in  the  end  be  compelled  to  adopt  the  methods  which  the  Mutual 
Fire  Insurance  companies  now  follow  with  such  signal  success.  Definite 
standards  of  safeguards  would  be  established,  and  the  removal  of  unsafe 
conditions  would  be  insisted  on  before  an  employer  could  enter  the  class  of 
preferred  risks.  In  addition  to  this,  periodical  inspection  by  competent  in- 
spectors provided  by  the  insurance  companies  would  insure  that  the  stand- 
ards of  safety  were  maintained.  This  is  the  policy  followed  by  the  New 
England  Mutual  Fire  Insurance  companies ;  and  the  results  have  been  a  very 
considerable  reduction  in  loss  of  property  by  fire  and  a  great  reduction  in 
the  rate  paid  for  insurance. 

TabJe  No.  3  shows  that  the  141  firms  reporting,  pay  a  trifle  more  than 
$100,000  per  annum  for  liability  insurance.  Just  how  much  of  this  reaches 
the  injured  workman,  the  Commission  was  unable  to  ascertain.  In  the  case 
of  the  Machinery  Manufacturers  No.  165,  only  $200  of  the  total  premium 
of  $2,505.79  was  paid  the  workmen.  If  the  percentage  developed  by  other 
investigators  holds  true,  then  of  the  $100,000  paid  as  insurance  by  the  em- 
ployers covered  in  the  table  about  $25,000  ultimately  reaches  the  injured 
workman  or  his  family.  Compare  this  with  the  $74,073  shown  by  Table  3 


170  EMPLOYEES'  LIABILITY  COMMISSION 

as  the  compensation  which  would  be  due  under  the  proposed  Compensation 
Act 

Table  No.  3  shows  that  the  estimated  total  cost  to  the  employer  for 
compensation  and  medical  attendance  under  the  proposed  Act  would  be  ap- 
proximately $84,000,  as  compared  with  a  present  cost  of  over  $100,000  for 
liability  insurance.  It  should  be  borne  in  mind,  however,  that  the  submitted 
reports  of  manufacturers  do  not  cover  all  of  the  accidents  in  their  establish- 
ments. A  great  many  men  are  now  compelled  to  lay  off  for  minor  accidents, 
and  reports  of  these  never  reach  the  office,  because  of  the  absence  of  liability 
on  the  employer's  part. 

The  probability  is  that  claims,  particularly  for  temporary  disability,  will 
largely  increase,  and  that  the  actual  amount  paid  to  the  men  under  the  Act 
proposed,  will  exceed  the  total  amount  now  paid  for  liability  insurance.  In 
addition  to  this  will  be  the  charge  for  administration  and  profit  on  the 
part  of  the  insurance  companies,  so  that  the  manufacturers  may  look  to  a 
substantial  increase  in  their  rates. 

This  prophecy  is  borne  out  by  the  following  letter  received  from  one 
of  the  large  manufacturers  of  malleable  iron  in  England. 

REPORT  RE  COMPENSATION  TO  EMPLOYES. 

Prior  to  the  Workmen's  Compensation  Act  of  1897  an  English  employer 
of  labor  was  only  liable  (Employers'  Liability  Act  of  1880)  for  damages  orv 
compensation  for  personal  injuries  which  were  the  result  of  any  negligences 
or  other  unlawful  act,  either  of  himself  or  of  his  servants  for  whose  con- 
duct he  was  legally  responsible,  under  which  law  I  cannot  trace  that  we 
were  called  upon  to  pay  anything  in  the  shape  of  compensation.  The  Work- 
men's Compensation  Act  of  1897  called  upon  the  employer  to  compensate  his 
workmen  when  injured  by  any  accident  arising  out  of  and  in  the  course  of 
his  employment,  irrespective  of  any  question  of  negligence.  The  only  ex- 
ception to  such  liability  being  when  an  accident  could  be  attributed  to  the 
serious  and  wilful  misconduct  of  the  injured  workman.  This  Act  was  lim- 
ited to  accidents  in  certain  trades — for  the  most  part  those  trades  in  which 
the  risks  of  employment  are  greater  and,  consequently,  in  which  accidents 
are  more  numerous,  such  as  railways,  factories,  mines,  quarries,  engineering 
works,  and  to  employment  on,  in  or  about  any  building  which  exceeds  thirty 
feet  in  height  and  is  either  being  constructed  or  repaired  by  means  of  a 
scaffolding,  or  being  demolished,  or  on  any  machinery  driven  by  steam, 
water  or  other  mechanical  power,  which  is  being  used  for  the  purpose  of  the 
construction,  repair  or  demolition  thereof. 

Scale  of  compensation  was  as  follows: 

1.  In  case  of  total  or  partial  disablement,  the  compensation  is  to  take 
the  form  of  a  weekly  payment  during  incapacity  and  dating  from  the  end 
of  the  second  week  after  the  accident.  The  amount  is  not  to  exceed  50  per 
cent  of  the  workman's  average  weekly  earnings  during  the  twelve  months 
immediately  previous  to  the  accident,  or  during  the  whole  term  of  his  then 
employment  if  employed  for  less  than  that  period.  The  weekly  payment 
is  in  no  case  to  exceed  £1.  In  assessing  such  sum  it  is  necessary  to  take 
into  account  the  difference  between  the  weekly  wages  the  workman  was 
earning  before  the  accident  and  those  he  is  able  to  earn  afterwards,  and  also 


1899  

41  —  11   i 

1900  

86  16  1 

1901  

22  19  10 

1902  

27  —  14   2 

1903  

10  16   6 

1904  

128  16  11 

1905  

16  —  14  —  5 

1906  

9  17  11 

1907.. 

35  12—  2 

EMPLOYERS'  LIABILITY  COMMISSION  171 

to  take  into  account  any  payment  not  being  wages  which  the  employer  may 
have  paid  him  during  his  incapacity. 

No  compensation  for  the  first  fortnight. 

2.  In  case  of  death,  where  deceased  leaves  dependents  wholly  dependent 
upon  his  earnings : 

(a)  A  sum  equal  to  his  earnings  in  the  employment  of  the  same  em- 
ployer during  the  three  years  immediately  preceding  the  injury ;  or 

(b)  If  not  engaged  for  three  years  in  such  employment,  156  times  his 
average  weekly  earnings  during  the  period  of  his  actual  engagement;  or 

(c)  At  least  £150.     In  no  case  shall  the  amount  exceed  £300  or  be  less 
than  £150,  and  any  weekly  payments  made  under  this  Act  are  to  be  deducted. 

Annual  cost  to  Ley's  Co.  during  the  operation  of  this  Act: 
Year. 


Being  an  average  of  2s- Id 
per  cent  on  wages  paid. 


The  Workman's  Compensation  Act  of  1906  (copy  of  which  herewith) 
came  into  force  on  1st  July,  1907,  but  owing  to  this  not  being  understood  by 
employes  we  did  not  find  our  costs  increased  for  the  first  six  months.  In 
1908,  however,  our  compensation  account  increased  rapidly  and  by  May  12th 
we  had  paid  £104-18s-9d.  On  this  date  we  took  out  a  policy  with  one  of 
the  large  insurance  companies  at  7s-6d  per  cent  on  wages  paid,  which  policy 
is  still  in  force. 

Pro.  LEY'S  MALLEABLE  CASTINGS  CO.,  LTD., 

E.  H.  WOOD,  Director. 

Since  writing  the  above  we  have  received  the  demand  note  from  the 
insurance  company,  who  inform  us  that  the  payments  made  by  them,  to- 
gether with  the  expenses  re  disbursement,  etc.,  are  within  a  few  pounds  of 
the  premium.  We  have  therefore  decided  today  to  increase  our  premium  from 
7s-6d  per  £100  of  wages  to  lOs-Od  per  £100  of  wages. 

April  29th,  1910. 

CONTRIBUTIONS  FROM  EMPLOYERS. 

In  the  preparation  of  Table  No.  3  the  amounts  which  the  employers  now 
contribute  to  Mutual  Aid  Societies  and  for  medical  attention  have  been 
purposely  omitted.  The  contributions  in  most  cases  cover  sick  benefits,  as 
well  as  accident  benefits,  and  it  is  the  purpose  of  the  Commission  to  recom- 
mend nothing  which  will  reduce  or  eliminate  such  schemes  of  co-operation. 
It  is  assumed  therefore  that  these  expenditures  will  continue  after  the  en- 
actment of  a  compensation  measure,  and  on  that  account  they  have  been 
omitted  from  the  computations. 


172 


EMPLOYERS'  LIABILITY  COMMISSION 


ILLINOIS  MANUFACTURERS' 


PRESENT  PLAN 


d 

IZ 

CHARACTER  OF 
BUSINESS 

^•i 
ff 

Number  of 
Accidents. 

Fatal 
Accidents. 

| 

|S 

Partial 
Disability. 

Loss  of  Time  in 
Days. 

it 

F 

.2S 

Jill 
|lll 

Liability  Insur- 
ance Cost. 

IE 
p, 

is* 
:§§£ 

28 
81 

Machinery  
do 

12 
12 

5 
1 

.... 

133 
30 

$1.96 
2  25 

$    261.58 
67  50 

$    905.16 
220  44 

$    905.16 
220  44 

84 

do 

12 

326  04 

326  04 

11 
00 

do      
do 

12 
24 

1 

30 

2.75 

82.50 

43.90 
587  18 

43.90 
293  59 

116 

do            ...         .... 

120 

2 

28 

3.60 

100  00 

105 

do 

24 

393  28 

196  64 

M9 

do 

24 

1 

24 

2  66 

64  66 

656  34 

328  17 

1S8 

do 

24 

40 

720 

2  50 

1800  00 

1  651  75 

825  88 

49 

do 

24 

69 

3  60 

248  85 

428  06 

214  03 

151 

57 

do      
do 

24 
24 

560.00 
50  00 

280.00 
25  00 

83 

do          

36 

11 

195 

1  71 

332  36 

2150  00 

716.65 

% 

do 

12 

5 

*1 

66 

2  50 

165  00 

523  21 

523  21 

165 
59 
ftt 

do      
Electrical  Machinery  
do 

21 
144 

24 

12 
6 
3 

"*r 

'*i' 

265 
144 

18 

2.72 
3.00 
2  50 

720.14 
432.00 
45  00 

2,505.79 
2,400.00 
70  00 

1,431.84 
200.00 
25  00 

15 
157 

Railway  Equipment  
do                       .... 

12 
12 

2 

278 

i 

42 
3972 

1.87 
2  36 

78.52 
9  373  92 

784.25 
6934  23 

784.25 
6  934  23 

149 
150 
q 

Steel  Specialties  
Adding  Machines  
Elevator  Manufacturer  .  .  . 

24 

24 
24 

4 

i 

*2 

144 

'"i2 

1.80 
i.75 

'259.20 
"2l!66 

735.00 
444.08 
72.00 

367.50 
222.04 
36  00 

69 
1?1 

Tool  Making  Machinery  .  . 
Topi  Makers. 

12 
24 

i 

24 
18 

2.50 
2  83 

60.00 
50  94 

700.00 

700.00 

146 

Auto  Specialties    

36 

1,350.00 

450.00 

109 
56 
94 
72 
13 
130 
74 

Motors  
Cutlery  Manufacturer..  .  .  . 
Steel  Shafting  
Insulated  Wire..  
Foundry  
Iron  and  Steel  
Castings  

24 
12 
24 
24 
24 
4 
12 

4 
...... 

15 

22 
4 

*i 
*i 

48 
12 

"ee" 

216 
400 
60 

1.25 
2.00 

i"23' 
1.86 
2.08 
1.90 

60.00 
24.00 

"'83:35 
401.76 
831.30 
113.40 

220.00 
105.00 
4,50.00 
422.94 
2,131.27 
1,425.64 
470.00 

110.00 
105.00 
225.00 
211.47 
1,060.64 
4,276.92 
470.00 

97 

Stoves 

36 

I 

18 

3  00 

54  00 

155 

do 

24 

2 

90 

2  38 

202  00 

750  00 

375  00 

125 
40 

do      
do 

4 
12 

1 

30 

i  75 

52  50 

95.00 

285.00 

119 
86 
15? 

Hardware  Specialties  
do       
do 

12 
16 
12 

20 
'22 
4 

360 
264 
64 

2.50 
2.00 
2  25 

900.00 
528.00 
143  31 

700.00 
520.00 

700.00 
400.00 

145 
15 

do       
do 

60 
12 

4 

2 

72 
42 

2.00 
1  50 

144.00 
63  00 

1,297.00 
784  25 

259.40 

784.25 

124 

4 

Plumbing  Supplies  
do                

4 
24 

9 

*i 

195 

2.00 

390.00 

900.00 
2068.86 

2,700.00 
1,034.43 

20 
103 
55 

do       
Automobiles  
Carriages          .    . 

24 
24 
24 

2 

i 

63 

is 

2.50 

2  66 

157.50 
36  66 

700.00 
287.04 
700  00 

350.00 
143.52 
350.00 

80 
65 

Wagons  
Agricultural  Implements 

12 
24 

4 

48 

2.20 

106.00 

329.16 

329.16 

3°, 

do 

24 

1 

15 

2  00 

30  00 

350  00 

175.00 

44 
85 
5 
6 
7 
162 
161 

do      
do       
do      
do      
do      
do 
do       

24 
24 
4 
24 
24 
24 
60 

12 
1 
5 
3 
45 
11 

*r 

9 

'*i' 
*i' 
? 

332 
18 
169 
111 
954 
120 

2.03 
1.75 
1.63 
1.63 
1.85 
2.00 

676.80 
31.50 
275.75 
189.75 
1,754.70 
240.00 

1,200.00 
1,068.00 
294.15 
374.38 
1,800.00 
551.92 
9,167.66 

600.00 
534.00 
882.45 
187.19 
900.00 
275.96 
1,833.53 

?7 

Pianos. 

36 

1500  00 

500.00 

126 
^7 

Furniture  
do 

24 
24 

7 
2 

*1 

36 
36 

2.25 
2  00 

81.00 
72  00 

350.00 

175.00 

26 
102 
23 
3 
35 
140 
70 
79 
29 
54 
148 
115 

do       
do 
do      
do      
do 
do      
do       
Coffins-  
Roofing  
Mill  Work  
do       
do      

24 
24 
24 
36 
24 
24 
24 
12 
12 
24 
24 
24 

11 
1 
2 
2 
3 
2 
3 
2 
1 
1 
4 
2 

if 

*2 

\ 

*i 
*i' 

*i 

132 
18 
84 
27 
72 
24 
84 
24 
80 
18 
132 
'   96 

2.50 
2.50 
2  25 
2.38 
1.86 
1.50 
2.23 
1.44 
1.75 
2.17 
2.37 
1.60 

330.00 
40.50 
192.00 
64.50 
133.92 
36.00 
209.50 
34.56 
140.00 
39.00 
313.80 
153.60 

2,179.66 
182.00 
180.00 
480.00 
880.00 
680.00 
540.00 
185.25 
1,005.54 
875.00 
560.77 
3,000.00 

1,089.83 
91.00 
90  00 
16000 
440.00 
340.00 
270.00 
185.25 
1,005  54 
437.50 
280.38 
1,500.00 

Continued  on  page  174. 


EMPLOYERS'  LIABILITY  COMMISSION 


173 


ASSOCIATION— TABLE  No.  I. 


PRESENT  PLAN 

COMPENSATION  PLAN 

Contributions  to 
Mutual  Aid. 

5 

as 

III 
F 

a      6 

6  arts 

si's" 
!« 

«      «f 

t§1-i 

Jili 

S*S   . 

JKI 

H 

,{j 

!§ii 

•2  |«t 

ltfc 

0>VJ3   O.T3 

sin 

i  II  I 

t&o,. 
%°o«U 

3  ill! 

jilll 

111 

H 

III 

S^-s 
*•*•  s  ™ 
I*-***1 

$    200.00 
"720:00 

$    200.00 
""72o:oO 

$      48.00 
66.50 

$      48.00 
66.50 

$1,153.16 
286.94 
1,046.04 
43.90 
637.18 
100.00 
393.28 
656.34 
2,851.75 
428.06 
584.00 
50.00 
2,200.00 
1,423.21 
3,473.51 
4,350.00 
130.00 
934.25 
9,282.88 
1,735.00 
468.08 
72.00 
700.00 
150.00 
1,350.00 
220.00 
180.00 
450.00 
562.63 
2,528.77 
1,598.64 
470.00 
85.00 
750.00 
95  00 
18.00 
975.00 
570.00 
61.50 
2,297.00 
934.25 
1,250.00 
2,068.86 
720.00 
312.04 
750.00 
479.16 

"425.66 
1,200.00 
1,218.00 
439.15 
399.38 
6,760.00 
1.551.92 
9,167.66 
1,525.00 
450.00 
72.00 
3,379.66 
182.00 
372.00 
505.00 
1,060.00 
880.00 
690.00 
210.25 
1,005.54 
885.00 
560.  77 
4,000.00 

$1,153.16 
286.94 
1  046  04 

$    130.79 
33.75 

$    130.79 
33.75 

$    130.79 
33.75 

'  43.90 
318.59 
10.00 
196.64 
328.17 
1,425.88 
214.03 
292.00 
25.00 
733.33 
1,423.21 
1,984.64 
362.50 
65.00 
934.25 
9,282.88 
867.50 
234.04 
36.00 
700.00 
75.00 
450.00 
110.00 
180.00 
225.00 
281.31 
1,264.39 
4,795.92 
470.00 
28.30 
375.00 
285.00 
18.00 
975.00 
438.45 
61.50 
459.40 
934.25 
3,750.00 
1,034.43 
360.00 
156.02 
375.00 
479.16 

'"212:50 
600.00 
609.00 
1,317.45 
199.69 
3,380.00 
775.96 
1,833.53 
508.33 
225.00 
36.00 
1,689.83 
91.00 
186.00 
168.33 
530.00 
440  00 
345.00 
210.25 
1,005.54 
442.50 
280.38 
2,000.00 

41.25 
'"56:60 

'"32:60 
900.00 
124.42 

'"m.ia 

82.50 
310.07 
216.00 
22.50 
39.26 
4,686.96 
129.60 

'$"450:00 
"2,256:00 

"396:60 

537.50 

41.25 
'56.60 

32.66 
900.00 
124.42 

'"lee'.is 

532.50 
310.07 
2,466.00 
22.50 
39.26 
5,076.96 
667.10 

"lO:50 
30  00 
25.47 

41  25 
5^ 

16.00 
450  00 
62.21 

"55:39 
532  50 
177  00 
205.50 
11  25 
S9  26 
5,076  96 
333.55 

"5:25 
30.00 
12.74 

"l5:66 
12.00 

::::..:::: 

50.00 
100.00 

25.00 
10.00 

'300.00 

'850^00 
529.98 

"  6o:66 

'"156:66 

'"966:60 

'"456:60 

"'850  '.66 

302.80 
"'30:00 

24.00 

'"56:60 
50.00 
437.74 
1,950.00 

'   i56:6o 

2,348.65 
*   1,000.00 
24.00 

12.00 

'"ie'.w 

50.00 
250.00 
162.50 

'"150:60 

2,348.65 
500.00 
12.00 

10.50 
30.00 
25.47 

150.00 

75.00 

30.00 
12.00 

30.00 
12.00 

75.00 

75.00 

'"m'.w 

'"5i9"oo 

139.69 
397.50 

69.85 
198.75 

41.68 
200.88 
415.65 
56.70 
27.00 
101.00 

'"450:00 
945.00 

4i.68 
650.88 
1,360.65 
56.70 
27.00 
101.00 

20.84 
325.44 
4,081  95 
56.70 
9.00 
50.50 

85.00 

28.30 

18.00 

18.00 

26.25 
450.00 
264.00 
71.65 
72.00 
31.50 
195.00 

26.25 
450.00 
264.00 
71.65 
72.00 
31.50 
720.00 

26  25 
450.00 
198.00 
71.65 
14.40 
31.50 
2,16000 

'"S9:38 

'"9"66 

53.00 

7:56 
169.20 
7-88 
1,493.64 
47.44 
618.68 
1,152.00 
1,211.90 

275.00 

275.00 

50.00 
61.50 
1,000.00 
150.00 

38.45 
61.50 
200.00 
150.00 

'  '  '525  66 

'"350!66 

"i',656:66 

'"26:66 
25.00 
50.00 
150.00 

'"i6:oo 

12.50 
25.00 
150.00 

78.75 

78.75 

18.00 
53.00 

18.00 
53.00 

"15:66 
338.40 
15.75 
427.88 
94.88 
1,237.35 
2,304.00 
6,059.50 

'2,665:56 
36.00 
671.00 
20.25 
96.00 
32.25 
566.96 
18.00 
104.75 
2,567.28 
70.00 
19.50 
156.90 
4,576.80 

.      75.00 

37.50 

15.00 
338.40 
15.75 
137.88 
94.88 
877.35 
120.00 

'"46:50 
36.00 
165.00 
20.25 
96.00 
32.25 
66.96 
18.00 
104.75 
17.28 
70.00 
19.50 
156.90 
76.80 

"360."  00 

"360.00 
2,184.00 
6,059.50 

2,625:66 
'"SOeioO 

560:00 

'2,550:6o 
4,500.00 

"4,5fi6!66 

2,280  :66 

150.00 
145.00 
25.00 
400.00 
1,000.00 

75.00 
435.00 
12.50 
200.00 
500.00 

"  i',666!66 

'"566:60 

25.00 
100.00 
72.00 
200.00 

8.33 
50.00 
36.00 
100.00 

1,032.75 
18.00 
335.50 
10.13 
48.00 
10.75 
283.48 
9.00 
52.37 
2,567.28 
70.00 
9.75 
78.45 
2,288.40 

192.00 
25.00 
180.00 
200.00 
150.00 
25.00 

'"lO:00 

96.00 
8.33 
90.00 
100.00 
75.00 
25.00 

'"5:60 
"506.00 

1,000.00! 

Continued  on  page  175. 

174 


EMPLOYERS'  LIABILITY  COMMISSION 


ILLINOIS  MANUFACTURERS' 


PRESENT  PLAN 


!§ 

CHARACTER  OF 
BUSINESS      . 

ill 

Number  of 
Accidents. 

1 
I1 

*1 

*i 

Total 
Disability. 

i 

Ts" 

°i 

ss 

it 

s& 

•< 

3£&  • 

Jtt>  o5  -i? 
£gl 

ill! 
^ 

Liability  Insur- 
ance Cost. 

||- 

& 

45 
50 
46 
47 
41 
16 
134 
110 
106 
12 
107 
19 
137 
68 
159 
133 
78 
83 
32 
132 
113 
43 
118 
61 
129 
141 
21 
154 
73 
139 
98 
144 
25 
17 
58 
99 
88 
136 
147 
2 
22 
164 
30 
92 
143 
77 
75 
135 
67 
48 
76 
123 
156 
52 
10 
24 
82 
91 
95 
122 
101 
104 
100 
93 
34 
158 
112 
14 
128 
127 

Mill  Work 

24 
16 
24 
24 
29 
24 
28 
24 
24 
24 
180 
24 
24 
24 
4 
24 
24 
24 
24 
12 
24 
24 
24 
24 
60 
24 
24 
24 
48 
12 
24 
24 
24 
12 
96 
384 
12 
24 
28 
12 
28 
24 
12 
6 
12 
24 
24 
24 
24 
12 
24 
24 
24 
24 
24 
24 
24 
24 
24 
36 
12 
24 
24 
24 
24 
4 
24 
48 
24 
36 

60 
3 
23 
17 
7 
16 
9 
2 
15 
17 
2 

*14 

*12 
*5 

906 
50 
180 
168 
138 
396 
261 
48 
299 
180 
24 

$1.53 
1.55 
1.71 
2.00 
2.75 
2.60 
2.14 
1.94 
1.61 
1.60 
2.00 

$   1,390.20 
79.10 
309.60 
347.20 
379.50 
1,029-60 
555.00 
93.00 
483.21 
288.00 
48.00 

$  1,610.00 
256.82 
1,982.00 
4,172.40 
4,108.00 
1,213.28 
1,470.00 
150.00 
1,295.50 
750.00 

$      805.00 
192.62 
991.00 
2,086.20 
1,700.00 
606.64 
630.00 
75.00 
647.75 
375.00 

Box  Factory  
do          
do      
Tank  Works  
.Typewriter  Factory.  
'Sewing  Machines  
Glass  Factory  
Tanners  
Paper  Mill              .  .     . 

'*i' 

'*2 

do      
Envelope  Factory  
Paper  Boxes  
do      
do       
Lithographers  
Engravers  
do 

224.34 
391.60 
450.00 
34.00 
150.00 
400.00 
70.60 
96.00 
300.00 
520.00 

112.17 
195.80 
225.00 
102.00 
75.00 
200.00 
35.30 
48.00 
300.00 
260.00 

4 
15 
2 

90 
180 
85 

2.10 
1.17 
.85 

189.00 
210.00 
72.60 

.... 

•"4 

*i 

"i20 

2^6' 

"'moo 

do 

do      
do                       .     . 

do      
Confectioner 

••y 
1 

.... 

119.01 
726.58 
300.00 
60.00 
150.00 
665.00 
400.00 

59.50 
363.29 
60.00 
30.00 
75  00 
332.50 
100.00 

324 
12 

1.17 
.83 

379.44 
10.00 

do        

do                    

do        

2 

36 

1.50 

54.00 

Chewing  Gum  

'"i 

3 

Bakery 

*i 

65 

2.50 

162.50 

iei.oo 

80.50 

'"251.59 
3,004.75 
8.66 

"275:66 
64.12 
624.84 
1,888.20 
3,514.20 
1,065  70 
125.50 
144.00 
150.00 
250.00 
130.00 
450.00 
200.00 
1,500.00 
215.35 

do       
do 

5 
38 

2 

54 
552 
24 

3.00 
2.50 
1.67 

162.00 
1,380.00 
40.00 

503.19 
3,004.75 
69.28 

do      
Brewers'  Supplies  
Brick  and  Tile 

•'••• 

Brick  Yard 

275.00 
128.24 
1,457.93 
1,888.20 
8,200.00 
2,131.40 
125.50 
72.00 
150.00 
500.00 
260.00 
900.00 
400.00 
1,50000 
430.70 

do 

1 
5 
9 
25 
27 

'*i' 

'*2 

19 

66 
328 
494 
696 

1.60 
3.28 
1.75 
2.00 
1.95 

L67' 

30.46 
216.60 
581  ..74 
988.00 
1,357.20 

"'26!66 

Paving  Brick.         

'*6 
2 

*i 

Cement  Plant  

do         

do             

Cloth  Trimmings 

do      
Clothing  
do 

1 

12 

Shirts 

""£ 
3 

4 

Knitting  Mill  
do      
Department  Store  
Manufacturing  Jewelers.  . 
Watch  Manufacturer  

*i 

'.'.'.'. 

153 

72 
90 

1.30 
1.50 
2.50 

198.30 
108.00 
225.00 

7 

132 

2.12 

242.29 

200.00 
396.71 
100.00 
50.00 
500.00 
120.00 
225  .41 
2,001.74 
325  00 
437.42 
420.00 
785.00 
865.96 
2,833.33 
160.00 
730.75 
41,342.11 
4,417.66 

100.00 
198.35 
50  00 
25  00 
250.00 
60.00 
112.70 
667.24 
325.00 
218.71 
210.00 
392.50 
432.98 
8,500.00 
80.00 
182.69 
20,671.06 
1,472  55 

do'     
Laundry  
Naval  Stores 

Wholesale  Grocers 

Cereal  Mills 

Gullet  
Yeast  Manufacturer  
Soap  Manufacturer  
Spice  Manufacturer  
Packers'  Supplies 

5 

9 
2 
4 
1 
4 
52 
2 
11 
60 
11 

•  ••' 

*i 
*i 

180 
72 
36 
114 
40 
102 
984 
72 
244 
810 
159 

2.38 
2.00 
2.00 
2.94 
3.60 
2.10 
1.75 
2.50 
1.78 
2.82 
2.70 

428.  i6 
144.00 
72.00 
336.00 
144.00 
215.00 
1,722.00 
181.00 
435.70 
2,284.20 
429.30 

Packing  House  
do      
Packers  
Feathers  
Factory  
Dredging  
Grain  Elevator  

3 

'*i' 

*5 
*3 

32 

.  .. 

.... 

*r 

*i 

3966 

1120 

5 

55 

19649 

$2.12 

$  41812.29 

$166384.61 

$100715.95 

EMPLOYERS'  LIABIU  TY  COMMISSION 


175 


ASSOCIATION— TABLE  No.  I— Continued. 


PRESENT  PLAN 

COMPENSATION  PLAN 

Contributions  to 
Mutual  Aid. 

3 
§•"9   • 

ISi 
Jlf 
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t.STf 
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11  3  1| 

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fill 
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$  3,108.  0( 

)$   1,554.  (X 

$""66-:8C 

%""b\.k 

1  4,718.  OC 
323.6 
1,982.  OC 
4,172.  4C 
4,308.  OC 
1,213-2 
1,470-OC 
150.  OC 
3,506.  5C 
1,750.  OC 

""3i4:3 
583.9 
655.0 
34.00 
150.00 
400.00 
70.60 
96.00 
838.8 
541.3 

1  2,359.0 
249.  OC 
991.  OC 
2,086.2 
1,782.7 
606.6 
630.  OC 
75.  OC 
1,753.2 
875.  OC 

"i57:i 
291.9 
327.  5C 
102.  OC 
75.00 
200.00 
35.30 
48.00 
838.8 
270.6 

*      695.1 
39.  5* 
154.  8C 
173.  ^ 
189.7 
514.  8C 
277.5 
46.  5C 
241.  6C 
144.0 
24.  OC 

giisc 
105.00 
36.3 

1  3,914  OC 

"  2,587  :5C 
3,032.  5C 

$  4,609.10 
29.55 
2,742.  3C 
3,206.10 
189.  75 
514.80 
2,677.50 
46.50 
241.60 
1,494.00 
24.00 

"'94.'50 
105.00 
36.3 

'"i56:oo 

262.50 

S  2,304.55 
29.66 
1,371.15 
1,603.05 
78.60 
257.^0 
!     1,147.50 
23.25 
120.80 
797.00 
1.60 

47:25 
52.50 
108.90 

iso:oo 

131.25 

200.  OC 

82.  7t 

2,466  :6c 

1,350.  6c 

1,136.  OC 

568.  OC 

1,075.00 
1,000.00 

537.  5C 
500.  OC 

::::::::: 

90.00 
192.30 
205.00 

45.00 
96.15 
102.50 



538.82 
21.35 

538.82 
10.67 

150.00 

"'262:50 

119.0 
1,650.19 
315.00 
60.00 
210.00 
665.00 
400.00 

'"242:60 
26.00 
553.19 
3,504.75 
119.26 

'"275:60 
145.74 
1,495.03 
1,888.20 
11,250.00 
4,335.15 
135.50 
72.00 
150.00 
650.00 
260.00 
900.00 
500.00 
4,500.00 
530.70 
5,153.05 
200.00 
396.71 
100.00 
50.00 
580.00 
120.00 
250.41 
3,681.11 
795.00 
437.42 
840.00 
885.00 
86596 
6,356.25 
416.00 
830.75 
41,542  11 
5,597.86 

59.50 
825.1 
63.00 
30.00 
105.00 
332.50 
100.00 

'"i2i:6o 

13.00 
276.59 
3,504.75 
14  9 

"'275:6o 
72.87 
640.74 
1,888.20 
4,821.36 
2,167.57 
135.50 
144.00 
150.00 
325.00 
130.00 
450.00 
250.00 
4,500.00 
265.35 
2,576.53 
100.00 
198.35 
50.00 
25.00 
290.00 
60.00 
125.20 
1,227.03 
795.00 
218.71 
420.00 
442.50 
432.98 
19,088.76 
208.00 
207.69 
20,771.06 
1,865.95 

'"is'g'j 

5.00 

"27:60 

"'8i:25 

"'si'.oo 

690.00 
20.00 

50.00 

25.00 

873.61 
15.00 

436.80 
3.00 

189.7 
500 

94.86 
1.00 

60.00 

30.00 

'"iso'.oo 

27.00 

13.50 



""8i:6o 

26.00 
50.00 
500.00 
50.00 

'"46:56 
13.00 
25.00 
500.00 
6.25 

180.00 
81.25 

180.00 
40.63 

81.00 
690.00 
20.00 

40.50 
690.00 
2.50 

15:20 

108.30 
290.87 
494.00 
678.60 

'"io:6o 

""276:66 
15,216.66 

3,000.00 

'"15:26 
378.30 
290.87 
15,704.00 
3,678.60 

17.50 
37.10 

8.75 
15.90 

7.60 
162.21 
290.87 
6,730.00 
1,839.30 

3,050.00 
2,203.75 
10.00 

1,307.04 
1,101.87 
10.00 

10.00 

20.00 

150.00 

75.00 

"'99.'i5 
54.00 
112.50 

"'121.18 

Xsoo.oo 

"'99"i5 
54.00 
1,612.50 

'"49:58 
27.00 
1,612.50 

"50:6o 
3,000.00 
50.00 
26.53 

100.00 
3,000.00 
100.00 
53.05 

s.ioo'oo 

'2,550.'  00 

121.14 

60.59 

80.00 

'"25:00 
1,679.37 
470.00 

40.00 

12:56 

559.79 
470.00 

'"214:65 
72.00 
36.00 
168.00 
72.00 
107.50 
861.00 
90.50 
217.85 
1,142.10 
214.65 

'"48o":66 

825.00 

4,725:00 

'  1,500  .'OO 
10,632.00 
9;i80.00| 

694.'05 
897.00 
36.00 
168.00! 
72.00J 
107.50 
5,586.00 
90  50 
1,717  85 
11,774.10 
9,394.651 

"23'i:35 
897.00 
18.00 
84.00 
36.00 
53.75 
16,758.00 
45.25 
429.46 
5,887.05 
3,131.55 

2,522  92 

'  7,588  .'76 
377:35 

420.00 
100.00 

'  i',000.00 
256.00 
100.00 
200.00 
48.15 

210.00 
50.00 

"3,000:00 
128.00 
25.00! 
100.00 
16.05 

"  1432:65! 

1  22066.9511  19539.91 

31689.41 

20841  .95)1220140.  97 

141142.81 

20856.  14! 

S  85640.  50J$106496.64J$  74023.62 

176 


EMPLOYERS'  LIABILITY  COMMISSION 


TABLE   No.  2.— ESTIMATED   COMPENSATION   UNDER    PROPOSED   LAW   FOR 
DEATHS  AND  PERMANENT  DISABILITY  REPORTED  BY  MANU- 
FACTURERS IN  PREVIOUS  TABLES. 


I 

1 

c 

INDUSTRY 

RESULT  OF  INJURY 

1 
1 

Estimated  Compensa- 
tion. 

1 
jl     ' 

death  
finger  amputated  
"     broken  

$420.00 
300.00 
450  00 

$1,500.00 
150.00 
125  00 

47 

2 

Packing  Boxes.  .  . 

injury  to  head  
three  fingers  crushed.  .  .  . 
ankle  crushed  

420.00 
750.00 
345  -00 

420.00 
537.50 
300  00 

3,032.50 

$1,516.25 

134 

H 

Sewing  Machine.  .  . 

1  death..  

800.00 

2,400.00 

1,800.00 

6  deaths  

3,600  00 

10,800  00 

1  arm  and  leg  amputated  . 

630  00 

2,520  00 

22 

''4 

Cement  Plant 

1  hand  amputated 

630  00 

945  00 

1  foot          "           

630  00 

945  00 

15,210.00 

6,518.60 

14 

4 

Factory  

1  death  

480.00 

1,500.00 

375.00 

5  deaths  

3,300  00 

9,900  00 

128 

2 

Dredging  

1  loss  of  eye  

975  00 

732  00 

10,632.00 

5,316.00 

3  deaths  

2,460  00 

7  380  00 

12/ 

3 

Grain  Elevators.  .  . 

1  spine  in  j  ured  

900  00 

1  800  00 



9,180.00 

3,060.00 

1  death      .       .         .      . 

600  00 

1  800  00 

b9 

12 

Electrical  Mach'y 

1  loss  of  eye  

600.00 

450.00 

::::::::: 

2,250.00 

187.50  )i 

126 

2 

Furniture 

1  death 

675  00 

2025  00 

1  012  50 

79 

1 

Coffins  

1  death  

850.00 

2,550.00 

2,550.00 

; 

2  deaths  

1,200  00 

3,600  00 

115 

2 

Lmbr.  and  Mill  Wk. 

1  arm  amputated 

600  00 

900  00 

4,500.00 

2,250.00 

EMPLOYERS'  LIABILITY  a  >  EMISSION 


177 


TABLE  No.  2— Continued 


1 

T 
2 

INDUSTRY 

RESULT  OF  INJURY 

Wages  per  Year. 

Estimated  Compensa- 
tion. 

Compensation  per 
Year. 

Lumber.  . 

1  death  
1  three  fingers  cut  
1  arm  hurt  
2  foot  mashed.  
1  finger  broken 

$    345.00 
375.00 
405.00 
810.00 
690  .  00 
300.00 
270.00 
540.00 
420.00 
405.00 
270.00 
405.00 
450.00 
480.00 

$1,500.00 
187.50 
202.50 
405.00 
45.00 
150.00 
135.00 
270.00 
210.00 
202.50 
135.00 
202.50 
110.00 
160.00 

1  arm  broken  
1  hand  cut        

1       "       "    
1       "       "   

1  ankle  broken 

1  collar  bone  broken  
1  wrist  fractured 

$1,957.00 

1  finger  cut  
1  fingers  cut  off  

3,914.00 

* 

Agricultural  ImpPt. 

1  three  fingers.  

480.00 

360.00 

1,080.00 

2 
1 

Furniture  

1  loss  of  eye  

750.00 

500.00 

250.00 

Paving  brick 

1  foot  injured  

540.00 

270.00 

116.00 

Dept.  Store  

1  death 

250.00 

1,500.00 

1,500.00 

Packers  

3  deaths  

1,575.00 

4,725.00 

14,175.00 

2 

Agricultural  Impl.  . 

1  death 

728.00 

2,184.00 

1,092.00 

5 

Agricultural  Impl.  . 

2  deaths  
1  blind     

1,026.00 
450.00 
525.00 
525.00 

3,078.00 
2,000.00 
394.00 
787.50 


1,251.90 

1  loss  of  eye  

1  hand  amputated 

6,259.50 

2 

Cement  plant  

2  deaths 

1,000.00 

3,000.00 

1,500.00 

2 
2 

Mining  Machinery  . 

1  leg  injured  

900.00 

450.00 

225.00 

Steel  Specialties...  . 

1  lost  two  fingers  

1       u         «             u 

375.00 
700.00 

187.50 
350.00 

268.75 

537.50 

* 

Iron  and  Steel  

1  leg    broken    and    badly 
healed  
1  loss  of  eye  

540.00 
540.00 

540.00 
405.00 

2,835.00 

945.00 

178 


EMPLOYERS'  LIABILITY  COMMISSION 
TABLE  No.  2— Continued 


0 

Jz; 

1 

Period  in  Years. 

INDUSTRY 

RESULT  OF  INJURY 

Wages  per  Year. 

Estimated  Compensa- 
tion. 

t 

13 

2 

Foundry 

1  loss  of  eye    

$     600  00 

$     450  00 

$92n   nn 

124 

i 

Plumbers'  supply  . 

1  four  fingers  

525.00 

525.00 

1,575.00    ; 

7 

2 

Agricultural  Mach. 

1  three  fingers  

480.00 

360.00 

180.00 

26 

2 

Furniture  

1  loss  of  eye  

675.00 

506.00 

253.00 

1  crushed  hand  

450.00 

450.00 

12 

Paper  mill  

1  hand  amputated  

600.00 

900  .  00 

1,350.00 

675.00 

113 

2 

Printers  

1  spinal  injury   (not  per- 

KOK     fit) 

9A9    f»fl 

131.50 

139 

1 

Bakery  

1  two  fingers  (girl)  

360.00 

180.00 

180  .  00 

122 

3 

Yeast  Mfr  

1  finger  amputated  and 
hand  injured  

960  00 

480  00 

160  00 

101 

1 

Soap  Mfr 

1  loss  of  eye 

1,100  00 

825  00 

825  00 

157 

1 

Railway  Equipm't  . 

1  spine  injured  (not  per- 
manent)   

780  .  00 

390  00 

390  00    ' 

1  right  hand  cut 

615  00 

307  50 

1  right  thigh  broken 

330  00 

165  00 

1  thumb   and   first  finger 
cut 

390  00 

195  00 

1  right  leg  broken  
1  one  finger 

675.00 
450  .  00 

337.50 
150  .  00 

46 

1 

Packing  Boxes. 

1  eye  inflamed 

535  .  00 

262  .  50 

1  hip  and  arm  bruised 

600  00 

300  00 

1  right  thumb  

300.00 

150.00 

1  two  fingers 

450  00 

225  00 

1  right  forearm  bruised 

300  00 

150  00 

1  thumb  mashed 

360  .  00 

180  .  00 

1  three  fingers  mashed 

330  00 

165  00 



$2,587.50 

2,587.50 

Total... 

$58,028.50 

EMPLOYERS'  LIABILITY  COMMISSION 


179 


RECAPITULATION-TABLE  No.  3 

141  firms  reporting  show: 

Fatal  accidents 32 

Total  disability 

Partial         «     * '.  '/.  '.  '.  '.  ] .' .' .' .'  ]  .' .'  [         55 

Temporary "       1^28 

Total 1,120 

1028  temporary  disability  cases  entailed: 

Loss  of  time  in  days 19,649 

Average  rate  per  day $        2 . 12 

Loss  in  wages  to  employes 41,812 . 29 

Average  wage  loss  per  employe 40.99 

Total.  Per  year. 

Liability  insurance  cost  to  employers  under  present  plan. .  $166,384.61     $100,715.95 

Estimated  cost  to  employers  under  compensation  plan: 

Compensation  for  32  deaths 59,442.00         40,108.90 

"     total  and  partial  disability 26,198.50         17,919.60 

temporary  disability 20,856 . 14         16,045 . 12 

Total $106,496.64       $74,073.62 

Estimated  cost  of  medical  attendance,  assumed  at  $10.00  for 
each  case  of  temporary  disability,  $50 . 00  for  each 
case  of  partial  disability,  $200.00  for  each  case  of 
total  disability 14,030.00  9,800.00 

$120,526.64       $83,873.62 
Difference  between  cost  of  liability  insurance  and  commission 

plan $45,857.97       $16,742.33 

No  account  has  been  taken  in  these  figures  of  the  cost  of  administration  and  the 
profit  of  insurance  companies  under  a  Compensation  Act. 


CHICAGO    BRANCH    NATIONAL  METAL 
TRADES'  ASSOCIATION 

The  same  blanks  used  by  the  Commission  in  securing  data  among  the  manufacturers 
were  sent  to  the  Chicago  branch  of  the  National  Metal  Trades'  Association,  through  their 
secretary,  and  nineteen  answers  were  received.  The  average  period  covered  shows  six 
years,  although  a  majority  of  the  reports  are  for  a  much  shorter  period.  A  total  of  twenty- 
six  accidents  are  given,  three  of  which  are  classified  as  total.  In  one  case  the  amputation 
of  a  finger  is  so  classed,  although  no  such  intention  should  be  credited  to  the  Commission. 
No  fatal  cases  are  reported.  Twelve  temporary  disabilities  occurred  and  1,098  days'  time 
was  lost  to  employes  at  an  average  rate  of  $2.30  per  day. 

The  cost  to  employers  shows  a  total  of  $6,736.24,  divided  between  insurance,  voluntary 
contributions  and  medical  and  surgical  expense.  Not  all  the  accidents  were  compensated, 


180 


EMPLOYERS'  LIABILITY  COMMISSION 


and  the  apparent  waste  is  considerable.    The  reports  are  not  complete  enough  to  more 
than  approximate  the  cost  of  the  average  accident  at  $260.  The  complete  report  follows: 


6 

Period  Reported- 
Months. 

Number  of  Accidents. 

Total  DiFability. 

•i 

Loss  of  Time—  Days. 

Average  Wage  per 
Day. 

Wage  Loss  to  Employ- 
ee. 

Liability  Ins.  Cost. 

s 
2 
.Is 

P 

a 

i* 

~  - 

1 

>• 

Cost  to  Employer  un- 
der Present  Plan. 

1 

2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 

24 
24 
24 
60 
120 
12 
24 
24 
180 
132 

240 
12 
12 
60 
12 
240 
12 

3 

5 

2 

2 

'ti 

*54 
120 
652 

3.00 
2.73 

*$162.00 
327.60 

$    770.00 
1,358.00 
903.71 

$    700.00 

$1,470.00 
1,358.00 
903.71 

2.00 

403.03 
108.50 

403.03 
108.50 

3 

i 

.*3 

i 

24 

•:2.:66 

1,050.00 

1,050.00 

48.00 

42.00 
189.00 
150.00 
900.00 

37.00 

75  'OO 
50'00 

37.00 

117.00 
189.00 
200.00 
900.00 

1 

'§1 

3.00 

1 

1 

7 

.    .   . 

i 

i 

7 

36 
18 
194 

2.50 
1.50 

1.60 

27.00 
313.68 

Yes 

$240.00 

1,212 

26 

r 

12 

1,098 

18.33 

$878.28 

$5,874.24 

$240.00 

$862.00 

$6,736.24 

Fatal  accidents — none  reported. 
*Excess  of  total  given,  but  not  specified. 
fArm  amputated. 
JFinger  amputated  in  one  case. 
§Eye  destroyed. 


CARPENTERS'  AND   BUILDERS'  ASSOCIATION 
OF  CHICAGO 

Only  one  organization  of  building  contractors  answered  the  request  of  the  Commis- 
sion, although  each  of  the  twenty  or  more  organizations  were  requested  to  assist  the 
Commission.  From  the  Carpenters'  and  Builders'  Association  we  secured  sixty  answers 
to  our  circular' letter,  forwarded  by  Secretary  McCumber.  A  summary  would  indicate  a 
very  low  death  rate  from  accidents  among  the  workmen  following  this  branch  of  industry. 

The  average  period  for  forty-eight  contracting  firms  specifying  the  time  for  which 
figures  are  given  shows  about  seven  and  one-half  years.  Four  fatal  accidents  occurred, 
no  permanent  injuries,  and  only  thirty-eight  accidents  caused  temporary  disability.  To 
guard  against  these  accidents  the  contractors  expended  $30,164.14  in  liability  insurance. 
Mutual  aid  associations,  probably  from  the  nature  of  the  industry,  are  not  popular,  as 
only  one  item  is  found  in  this  column.  As  no  accident  is  reported,  this  item  seems  out  of 


EMPLOYERS'  LIABILITY  COMMISSION 


181 


place  or  is  a  contribution  to  a  former  employe  suffering  from  sickness  or  other  disability 
than  an  industrial  accident. 

The  showing  is  remarkable  in  view  of  the  generally  accepted  belief  that  the  industry 
should  be  classified  as  dangerous — a  belief  shared  by  liability  insurance  companies  in 
fixing  their  rates  for  insurance. 

The  full  text  of  the  report  follows: 


d 

1 

I1 

Number  of  Accidents. 

Fatal  Accidpnts. 

Partial  Disability. 

Loss  of  Time—  Days. 

Average  Wage  per 
Day. 

1 
«P. 

1 

Contribution  to  Mu- 
tual Aid. 

1 

Cost  to  Employer  un- 
der Present  Plan. 

Cost  to  Employer  un- 
der Compensation 
Plan. 

1 

11 

$      287  00 

$     287  00 

2 
3 

24 

384 

1 

1 

110 

$4.50 

$  495.00 

325.00 
6,400  00 

325.00 
6,400  00 

$    247.50 

4 

5 
6 

12 
12 
24 

10 

1 

1 

2 

8 

1 
1 

136 
66 

3.00 
4.80 
5  40 

408.00 
316.80 
59  40 

2,000.00 
300.00 

$75.00 

2,000.00 
300.00 

6,204.00 
158.40 

7 

8 

144 

6 

6 

176 

4.50 

792.00 

J2  Yrs.      1 
\  1,187.80] 

507.00 

/2  Yrs.      \ 
\1,187.00] 

396.00 

q 

10 

24 

500  00 

500  00 

11 

48 

•  ••• 

120 

1 

1 

f  1  Yr.        \ 

f  1  Yr.       1 

13 

144 

\  $100.00] 
f2  Yrs.      \ 

\  $100.00] 
870  00 

H 

24 

\  $870.00] 

36 

16 

216 

1 

1 

00 

105  20 

fl  Yr.        \ 

fl  Yr.       1 

52  60 

17 

360 

\  $150.00] 

1  $150.00] 

-|(- 

12 

250  00 

250.00 

°0 

24 

2% 

2% 

2% 

2%  

99 

24 

[Some       \ 

50.00 

/Some       1 

<  n        ,         ,             f 

24 

\Contraets.    / 
225  00 

IContracts.    ] 
225  00 

91 

240 

'; 

o 

og 

4  00 

284  00 

142.00 

0- 

fifi 

950  00 

950  00 

Yr' 

Yes 

• 

Yes 

97 

24 

1,000.00 

5.00 

1,005.00 

228 

0( 

48 

on 

360  00 

360  00 

01 

04 

"     * 

o 

on 

3  00 

90  00 

900  00 

700.00 

45  00 

0- 

Yes 

Yes  

60 

Vpc 

Yc 

121.00 

121.00 

31 

o- 

10 

'  ' 

4  80 

58  00 

58  OC 

79 

•>- 

12 

38 

60 
24 

1 

22 

4.80 

105.60 

fl  Yr.       | 
{    800.00] 

100.00 

900.00 

52.80 

182 


EMPLOYERS'  LIABILITY  COMMISSION 


jl 

Number  of  Accidents. 

Fatal  Accidents. 

Partial  Disability. 

Loss  of  Time—  Days. 

Average  Wage  per 
Day. 

1 
1 

Liability  Ins.  Cost. 

Contribution  to  Mu- 
tual Aid. 

Voluntary  Contribu- 
tions, Medical,  etc. 

Cost  to  Employer  un- 
der Present  Plan. 

Cost  to  Employer  un- 
der Compensation 
Plan. 

40 
41 
42 

43 

4*4 

45 
46 
47 
48 
49 
50 
51 
52 
53 
54 

55 

56 

57 

58 
59 
00 

72 
300 
360 

96 

' 

/Part  of    1 
\    Time.  / 

/Part  of    \ 
\    Time.  / 

12 

$100.00 

$100.00 

24 

48 

1,200.00 

1,200.00 

192 
180 
12 
24 

192 

300 
12 
240 

12 

1 

300.00 

300.00 

$330.00 
52.80 

Yes.. 

$426.74 

$6,165.00 
26.40 

2 

10 
1 

110 
11 

$3.00 
4.80 

11,521.64 

11,521.64 

/Part  of\ 
(Wages./ 

Yes     .  .  . 

380.00 

380.00 

264 

4,484 

42 

4 

38 

727* 

$3.64 

$3,038.80 

$30,164.14 

$426.74 

$858.00 

$30,616.38 

$13,489.70 

THE   COOK   COUNTY 
CORONER'S  RECORD 

(The  left,  or  even  numbered,  pages  show  the  record  of  individual  cases 
referred  to  in  the  text  found  on  the  right,  or  odd  numbered,  pages.) 

nana 

The  two  basic  industries  of  mining  and  transportation  are  responsible 
for  so  large  a  proportion  of  our  industrial  accidents  that  the  Commission 
made  them  the  subject  of  special  investigations.  But  they  are  not  responsible 
for  all.  Far  from  it.  Here  and  there,  on  buildings,  in  mills,  behind  teams 
in  the  streets,  men  are  dropping  daily  to  their  death  or  suffering  accidents 
that  throw  them  and  their  families  into  hopeless  poverty.  The  Commission 
recognized  at  the  start  that  the  facts  regarding  these  miscellaneous  accidents 
were  quite  as  important,  if  not  so  vivid  to  the  popular  mind,  as  those  to 
be  found  in  the  industries  like  transportation  'and  mining,  where  the  haz- 
ards are  better  appreciated.  It  was  important  to  know,  for  example,  whether 
the  workingman  who  suffers  an  injury  on  the  ordinary  job  is  likely  to  be 
as  well  cared  for  as  those  in  the  extra-hazardous  trades. 

To  get  a  good  cross-section  of  this  situation  the  Commission  turned  to 
the  records  of  the  Coroner  of  Cook  County  and  drew  off  a  list  of  the  600 
deaths  which  occurred  in  Cook  County  in  1908  as  the  result  of  industrial 
accidents.  From  this  list  of  600  the  Commission  took  the  names  of  all  who 
were  employes,  killed  in  the  course  of  duty.  Cancelling  the  names  of  the 
steam  and  electric  railway  men  whose  cases  were  being  traced  through  the 
records  of  the  Illinois  Railway  and  Warehouse  Commission,  the  Commis- 
sion found  itself  in  the  possession  of  data  covering  some  200  fatal  indus- 
trial accidents  in  Cook  County  in  a  single  year.  A  member  of  the  Commis- 
sion undertook  the  investigation  of  these  cases.  In  a  number  of  instances, 
of  course,  the  families  could  not  be  found,  but  the  Commission  was  successful 
in  getting  the  facts  in  regard  to  149  cases.  In  the  tables  accompanying  this 
section  the  details  of  those  149  cases  are  shown. 

The  most  extraordinary  fact  disclosed  by  our  investigation  of  what 
might  be  called  the  common  run  of  industrial  fatalities  was- the  large  num- 
ber of  cases  in  which  not  a  penny  was  recovered,  either  in  court  or  out 
of  court.  Seventy  cases  out  of  the  149  were  without  a  settlement  of  any 
sort.  This  is  practically  half.  These  were  not  all  single  men  either,  with 
none  dependent  upon  them.  In  at  least  thirty-four  cases  they  were  mar- 
ried and  had  families.  Of  course,  in  many  of  these  seventy  cases  the  em- 
ployer contributed  something  toward  the  medical  and  funeral  expenses,  and 
the  trade  unions  also  stood  between  the  family  and  the  economic  blow  which 
fell  with  the  loss  of  the  wage  earner.  But  the  fact  remains  that  in  50  per 
cent  of  the  cases  the  industry  avoided  the  burden  practically  in  toto. 

In  only  forty-two  of  the  149  cases  had  the  adjustment  of  the  claims  for 
damages  been  taken  into  court.  Although  at  least  a  year  and  a  half  had 
elapsed  since  the  families  of  these  men  were  crippled  by  the  loss  of  the 
bread  winner,  in  only  two  instances  had  their  claims  been  judicially  passed 


184 


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upon.  One  was  lost  and  the  other  won ;  the  remaining  thirty-nine  were  pend- 
ing and  seem  likely  to  remain  in.that  status  for  a  considerably  longer  period. 

In  only  one  instance,  as  we  have  said,  had  there  been  a  successful  suit. 
In  that,  the  case  of  a  carpenter  who  left  a  widow  and  three  children,  dam- 
ages amounting  to  $2.000  were  awarded.  The  lawyers'  fees  left  $1,800  for 
the  family.  In  only  one  other  case — such  were  the  delays  of  the  law — had 
a  suit  been  pushed  through  to  completion,  but  in  that  case  the  plaintiff 
lost.  He  was  an  electrician,  a  single  man,  and  his  employer  had  paid  $175 
for  his  funeral  expenses.  The  Commission  makes  no  attempt  to  pass  upon 
the  merits  of  the  case.  The  facts  are  worth  something  as  tending  to  show 
that  the  course  of  litigation  for  the  plaintiff  is  not  always  smooth. 

There  were  almost  as  many  settlements  out  of  court  as  there  were  at- 
tempted settlements  in  court.  The  former  numbered  thirty-eight  and  ranged 
from  the  $50  paid  for  the  death  of  a  fireman  and  the  $100  paid  for  the 
loss  of  a  structural  ironworker  to  the  very  exceptional  settlement  for  $4,500 
made  with  the  family  of  a  foreman  who  had  been  struck  by  a  derrick.  The 
average  settlement — that  is,  the  average  of  those  that  were  actually  settled 
— was  $847.  In  only  six  of  the  cases  that  were  settled  out  of  court  was 
the  Commission  able  to  learn  the  amount  of  the  attorneys'  fees.  These  were 
found  to  average  $150.  If  we  subtract  from  the  average  settlement  of  $847 
the  average  amount  paid  the  lawyers  in  half  a  dozen  representative  cases, 
the  net  amount  of  the  average  settlement  will  be  in  the  neighborhood  of  $700 
for  the  loss  of  a  human  life.  There  will  probably  be  no  disputing  the  fact 
that  the  settlements  made  out  of  court  are  not  adequate  to  meet  the  loss. 
Without  a  system  of  compensation  behind  them,  the  families  of  the  deceased 
workers  are  at  a  serious  disadvantage  in  the  negotiations. 

The  average  out-of-court  settlement  in  the  building  trades  amounted,  the 
Commission  found,  to  $835. 

The  average  settlement  for  the  teamster,  on  the  other  hand,  was  noth- 
ing whatever.  Not  one  of  the  families  of  the  nineteen  teamsters  killed  during 
1908  received  a  penny  in  settlement.  Six  of  them  have  sued  and  their  cases 
are  pending. 

The  miscellaneous  trades  had  an  average  settlement  of  $1,368.  That  this 
was  so  large  was  due  to  the  occurrence  of  a  couple  of  settlements  for  $3,000 
each. 

Laborers  working  for  contractors  were  not  valued  so  high.  In  only  a 
single  case  was  there  a  settlement,  and  that  one  was  for  $150.  On  the  other 
hand,  the  deaths  of  laborers  in  the  steel  mills  was  compensated  for  at  an 
average  of  $845.  The  average  settlement  in  the  table  of  general  laborers 
was  $693.  But  these  figures  are  not  satisfactory,  because  they  tell  merely  the 
story  of  the  minority  who  made  settlements;  they  give  no  hint  of  the  large 
number  of  cases  in  which  no  settlement  whatever  was  made. 

Outside  of  the  county  of  Cook,  the  Commission  received  the  same  cour- 
teous treatment  shown  us  by  Coroner  Hoffman.  A  circular  letter  reached 
every  county  in  the  State,  and  among  the  gentlemen  who  gave  us  freely  of 
their  services  were:  Coroners  Rhodes  of  Sangainon,  Oleson  of  Du  Page, 
Dougherty  of  McDonough,  Baker  of  Saline,  Slyder  of  Livingston,  Creland  of 
Cumberland,  Rutherford  of  Douglas,  Buxton  of  Macon,  Martin  of  Richland 
and  Grear  of  Union. 


186 


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LAW    SUIT 

(The  left,  or  even  numbered,  pages  show  the  record  of  individual  cases 
referred  to  in  the  text  found  on  the  right,  or  odd  numbered,  pages.) 


naan 


There  is  a  widespread  notion  that  the  victim  of  an  industrial  accident  is 
not  unlikely  to  get  a  handsome,  not  to  say  spectacular,  award  if  he  or  his 
family  can  only  hold  out  long  enough  to  fight  the  case  through  the  court 
This  optimistic  view  assumes,  perhaps  correctly,   that  the  average  jury 
sympathetic  toward  the  plaintiff  and  is  rather  prone  to  make  the  damages 
heavy  as  possible.    Its  main  weakness,  the  Commission  found,  lies  in  its  failui 
to  square  with  the  average  fact. 

The  Commission  was  forced  to  conclude  as  the  result  of  its  general  invest 
gations  that  the  spectacular  damages  which  figure  so  prominently  in  the  poj 
ular- conception  of  this  question  were,  on  the  whole,  exceedingly  rare.  Moi 
over,  when  they  did  occur  they  were  commonly  the  result  of  a  jury  trial  in 
lower  court  and  shrank  considerably  on  appeal  to  a  higher  court  or  a  ret 
And  the  average  was  low. 

In  order  to  test  its  conclusions  further,  the  Commission  asked  a  numl 
of  attorneys  who  make  a  specialty  of  such  cases  for  specific  information 
this  point.  What  was  the  average  compensation  they  had  been  able  to  secu] 
for  their  clients  in  a  given  number  of  cases?  What  was  the  net  compensation* 
Two  attorneys  threw  open  their  books  to  the  investigators  of  the  Commissi( 
permitting  them  to  draw  off  very  full  records  as  to  closed  and  pending  cas 
This  data  proved  most  interesting,  but  its  summary  only  confirmed  the  coi 
elusions  reached  elsewhere. 

For  example,  a  study  of  the  dockets  of  the  first  attorney,  who  is  a  well 
known  specialist  in  liability  suits,  showed  the  following  record  for  fatal  cases : 

Fatal  cases  in  litigation 

Number  in  which  final  award  secured 

Total  net  compensation $30,1( 

Average  net  compensation 1,( 


EMPLOYERS'  LIABILITY  COMMISSION  195 

The  dockets  of  the  second  attorney  showed  that  seven  completed  cases  had 
awards  aggregating  $3,106,  an  average  of  $443.  These  were  ordinary  cases, 
encountering  the  usual  exigencies  of  the  law.  The  common  law  doctrines  of 
fellow  servant,  contributory  negligence  and  trade  hazard  did  not  play  a  con- 
spicuous part  in  these  cases.  The  elimination  of  these  defenses  would  have 
changed  the  averages  but  slightly.  These  were  ordinary  cases,  taking  the 
ordinary  chances. 

But  the  investigation  was  pushed  still  further.  It  was  sought  to  learn 
what  awards  had  been  secured  in  disability  cases.  Some  of  the  spectacular 
verdicts  referred  to  above  began  to  appear  at  this  stage  of  the  investigation. 
A  switchman  who  had  his  legs  amputated  won  a  verdict  of  $25,000,  gave  his 
attorney  $8,500  and  retired  to  his  wheel  chair  with  $16,500.  Another  switch- 
man, earning  the  same  wages  and  suffering  the  same  mishap,  took  $6,600  out  of 
the  lottery.  But  the  total  compensation  received  in  the  thirty-five  completed 
cases  found  in  the  dockets  of  these  two  attorneys  amounted  to  $87,228,  an 
average  of  $2,520. 

But  the  full  tables  printed  in  this  section  are  more  eloquent  than  the 
averages.  They  tell  of  the  delays  which  were  suffered.  They  emphasize,  too, 
the  pure  gamble  of  the  results.  The  Commission  is  confirmed  in  its  conclusion 
that  litigation  is  a  wasteful  and  utterly  inadequate  method  of  providing  com- 
pensation for  the  victims  of  industrial  accidents. 

One  of  the  strongest  aspects  of  the  situation  as  revealed  by  these  tables 
is  the  element  of  delay.  A  switchman  whose  leg  is  broken  October,  1905, 
recovers  $200  in  December  three  years  later.  A  steel  worker  who  is  blinded 
by  an  accident  in  November,  1907,  recovers  nothing  until  May,  1910.  A 
switchman  who  lost  both  legs  in  1903  gets  his  damages  in  1910  after  a  delay 
of  seven  years. 

And  so  it  goes,  until  the  wonder  arises  how  any  sane  community  can 
find  words  to  defend  such  a  snail-like  method  of  procedure.  At  the  moment 
of  greatest  strain,  when  aid  is  needed,  when  the  panic  is  at  its  height,  when 
the  children  are  taken  from  school  and  put  to  work,  the  present  system 
withholds  assistance  unless  the  family  will  accept  blindly  the  terms  that 
are  offered. 

This  point  was  frequently  made  in  the  numerous  letters  which  the 
Commission  received.  One  of  the  most  interesting  communications  of  this 
sort  was  one  from  Mr.  William  Hard,  one  of  the  foremost  students  of  the 
subject  in  this  country.  Mr.  Hard  said,  speaking  of  the  material  which  the 
Commission  had  gathered: 


196 


EMPLOYERS'  LIABILITY  COMMISSION 


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"There  is  surely  one  story  in  each  table  *  *  *  I  should  say,  off- 
hand,  in  view  of  the  opposition  of  certain  employers  and  certain  trade 
unionists,  that  the  heart  of  all  the  stories  I  should  select  if  I  were  writing 
the  report  would  be  the  foolish,  unscientific,  heart-breaking  and  barbarous 
gamUe  which  the  present  system  is— a  gamble  which  awards  a  few  prizes 
to  injured  persons  and  deludes  all  other  injured  persons  into  thinking  they 
are  going  to  draw  prizes,  too,  when,  as  a  matter  of  fact,  they  are  going  to 
draw  blanks;  a  gamble  which  makes  the  employer  pay  preposterous  sums 
to  certain  people  and  so  prevents  him  from  paying  reasonable  sums  to  all. 
It  is  on  the  same  level  as  faro." 


This  point  was  also  made  in  the  address  delivered  by  Mr.  John  Mitchell 
at  the  Industrial  Welfare  Conference  held  at  the  call  of  the  National  Civic 
Federation  in  New  York  in  November,  1909.  Said  Mr.  Mitchell: 


"It  is  not  to  our  credit  that  in  America,  in  this  country  we  all  love, 
more  men  are  killed  in  industry,  more  men,  both  in  the  aggregate  and  in 
proportion  to  the  number  employed,  than  in  any  other  country  in  the  world. 
In  my  own  trade  four  men  are  killed  for  each  one  killed  in  other  countries. 
In  my  trade,  tomorrow,  not  less  than  twenty  men  must  die.  Every  day  the 
dawn  breaks,  from  ten  to  twenty  men  who  enter  the  darkness  of  the  mine 
return  no  more  to  their  wives  and  loved  ones.  This  is  a  problem — a  living 
problem  that  cries  aloud  for  solution. 

"I  am  heartily  in  favor  of  workmen's  compensation.  I  believe  that  our 
*  laws  should  be  so  amended,  or  that  such  contracts  should  be  made  between 
employers  and  workmen,  that  when  a  man  is  injured  or  a  workman  is  killed, 
the  money  needed  for  the  relief  of  the  injured  workman  or  for  the  relief  of 
the  family  of  a  workman  who  has  been  killed,  should  be  available  at  once, 
not  five  or  ten,  years  after  the  death  or  accident  occurs.  Only  a  short  time 
ago  I  was  reading  in  a  magazine  an  article  regarding  an  accident  that 
occurred  in  Chicago  some  twenty-one  years  ago.  A  cargo  of  cotton  was  being 
taken  through  the  Chicago  River  and  an  accident  resulted — an  explosion 
occurred  in  which  a  large  number  of  sailors  were  injured  and  killed — and 
twenty-one  years  after  the  explosion  occurred  a  commission  -made  a  pre- 
liminary report  as  to  the  cause  of  the  accident.  That  is,  of  course,  an 
exceptional  case,  yet  every  day  accidents  occur,  the  settlement  for  which 
takes  place  from  two  to  five  years  later.  A  workman's  compensation  act  or 
a  compensation  agreement  that  would  work  automatically  is  what  we  need — 
one  that  will  give  relief  immediately  when  the  accident  occurs." 


But  there  is  no  end  of  testimony  on  the  point,  and  space  forbids  the 
clinching  of  an  argument  which  needs  no  further  demonstration. 


198 


EMPLOYERS'  LIABILITY  COMMISSION 


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WHAT   BECOMES    OF  THE 
INJURED     WORKMAN  ? 

(Read  right,  or  odd  numbered,  pages,  for  reports;  left,  or  even  numbered,  pages 
contain  statistical  records.) 

nnnn 


The  Commission  attempts  no  extended  answer  to  the  question :  "What 
becomes  of  the  injured  workman  and  his  family?"  To  do  so  would  require 
an  intensive  search  through  hundreds,  if  not  thousands,  of  personal  cases 
from  the  records  of  organized  charity,  fraternal  societies,  churches  and  labor 
unions,  and  the  time  has  been  far  too  short  for  the  accomplishment  of  such 
a  task. 

But,  fortunately  or  unfortunately,  the  community  has  long  had,  staring 
it  in  the  face,  certain  records  which,  when  analyzed  and  extended,  tell  all 
too  plainly  of  the  hardships  of  the  present  irresponsible  system.  These  are 
the  records  of  the  cases  which  the  community  itself  has  had  to  succor,  the 
records  of  public  charity. 

THE  COUNTY  AGENT  OF  COOK  COUNTY. 

Through  the  office  of  the  County  Agent  of  Cook  County,  investigators 
for  the  Commission  secured  the  names  of  all  the  families  which,  during  a 
given  period,  were  forced  to  appeal  to  the  County  for  help  as  the  result  of 
the  death  or  incapacity  of  the  wage-earner  through  an  industrial  accident. 
During  the  period  chosen— from  January,  1906,  to  June,  1910,  covering  three 
and  one-half  years— Cook  County  alone  cared  for  147  such  families,  num- 
bering 558  individuals.  The  economic  resources  of  these  147  families  were 
carefully  investigated  and  the  facts  about  them  may  be  found,  carefully 
tabulated,  in  the  tables  which  accompany  this  section. 

But  the  main  facts  are  not  difficult  to  carry  in  mind.  In  seventy-two' 
families  the  wage-earner  had  been  killed;  in  seventy-five  cases  he  had  been 
merely  crippled.  The  Commission  is  frank  to  say  that  it  found  painfully 
instructive  the  stories  of  how  the  women  and  children  in  these  147  families 
met  the  load  thus  thrust  upon  them. 

As  was,  perhaps,  to  be  expected,  many  of  them  were  in  no  position  to 
meet  it  at  all.  Of  the  entire  147  families,  only  forty-three  had  any  wage 
income  whatever.  This  left  104  families  without  a  wage  income  of  any 
sort.  The  forty-three  families  which  were  able  to  market  the  labor  of  the 
children  or  the  mother  or  both,  had  an  average  weekly  income  of  i 
This  represents  in  a  large  degree  the  children's  burden,  for  the  thirty  women 
who  were  able  to  secure  employment  averaged  but  $3.39  each  week. 

One  gets,  perhaps,  a  clearer  sense  of  the  economic  strain  of  this  situation 
through  a  survey  of  the  averages.  This  whole  group  of  industrial  accident 


202 


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victims  has  an  aggregate  average  income  per  week  of  $295.75,  which  is  about 
$2.00  per  week  per  family,  or  about  50  cents  per  week  for  each  person. 

Whether  one  takes  these  averages  or  the  real  wages  actually  secured 
by  the  group  of  forty-three  families,  there  is  no  escape  from  the  conclu- 
sions involved.  Wages  of  this  sort,  in  a  community  like  Illinois,  mean  only 
one  thing ;  they  mean  labor  in  a  severely  "sweated"  industry  or,  at  best,  labor 
of  a  casual  and  precarious  sort.  Too  much  cannot  be  said  in  praise  of  the 
heroism  uncovered  by  our  investigators  in  many  of  these  cases.  They  were 
doing  their  part,  although  it  cannot  be  said  that  the  community  was  doing 
its  own  part  in  any  adequate  fashion.  And  the  painful  character  of  the 
situation  is  not  lessened  in  such  a  case  as  -that  of  the  widow  with  four 
daughters  who  finally  gave  up  the  struggle  to  make  ends  meet  and  embarked 
upon  a  career  of  immorality. 

It  will  not  do  to  assume  that  these  were  families  of  exceptional  weak- 
ness. They  were  not,  for  example,  at  the  economic  disadvantage  commonly 
imputed  to  immigrants.  Almost  half  of  them  (seventy-two)  were  native 
Americans.  It  seems  altogether  conclusive  that  their  pitiful  economic  con- 
dition was  due  almost  solely  to  the  absence  of  any  freely-working  system 
of  compensation  for  the  unforeseen  and  unescapable  accident.  If,  in  place 
of  the  County  as  the  relief  agent,  one  substituted  other  agencies,  such  as  the 
fraternal  order,  the  benefit  fund  of  the  trade  union,  or  private  philanthropy, 
it  seems  altogether  probable  that,  so  far  as  the  economic  ability  of  the  family 
to  bear  the  load  alone  is  concerned,  we  should  find  much  the  same  set  of 
facts  as  are  here  revealed. 


THE  COOK  COUNTY  HOSPITAL. 

Further  evidence  was  gathered  from  the  records  of  the  Cook  County 
Hospital  for  the  years  1907,  1908  and  1909  inclusive.  A  total  of  1,579  cases, 
the  victims  of  industrial  accidents,  were  investigated,  particularly  as  to 
occupation  and  nationality.  In  occupations  they  were  divided  into  four 
broad  groups  as  follows: 

Building  trades  223 

Teamsters  293 

Laborers    648 

Miscellaneous    415 

Total    1,579 

In  the  full  occupational  table  accompanying  this  report  a  more  detailed 
view  of  the  occupations  of  these  disabled  workers  may  be  secured.  The 
large  proportion  of  unskilled  labor  is  noteworthy;  likewise  the  hazardous 
nature  of  the  teamster's  work. 

The  returns  from  the  hospital  as  to  nationality  are  not  wholly  trust- 
worthy. At  all  events,  we  found  many  more  injured  workmen  classified  as 
Americans  than  we  had  been  led  to  expect  from  the  report  of  the  State 
Factory  Inspector.  The  hospital  authorities  classified  620  as  American  while 
only  163  are  designated  in  a  like  number  of  cases  compiled  from  the 
records  of  the  Factory  Inspector's  ofiice  for  the  whole  state.  Germans 
came  second  with  168;  Irish,  157;  Russians,  93;  Poles,  87;  and  32  other 


204 


EMPLOYERS'  LIABILITY  COMMISSION 


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nationalities  in  a  descending  ratio,  including  two  Assyrians,  one  Manxman, 
one  Mexican,  one  Turk,  and  one  Galatian. 

The  record  of  the  family  relationships  of  the  victims  turns  up  the 
familiar  fact  that  young  men,  or  at  all  events,  the  unmarried  men,  figure 
in  accidents  more  frequently  than  do  married  men.  The  County  Hospital 
record  shows  that  580  of  the  workers  were  married  and  764  were  single : 

• 

1907      1908      1909 

Married   195 

Single 245 

Widowers    38 

Not  given   63 

Total    ,  .  541  466 


TABLE  OF  OCCUPATION. 

1907  1908  1909  Total 

Carpenters 22  22  19  63 

Painters   21  24  22  67 

Cement  finishers  1  1 

Brick  layers  3  8  8  19 

Plasterers    3  4 

Steam  fitters   1 

Constructors    2 

Electricians    3  4  3  10 

Stone  cutters  1 

Plumbers    6  2 

Roofers    2  1 

Iron  workers  5 

Wood  workers 3 

Sheet  metal  workers  2  1 

Derrick  man    1 

Gas  fitter   1  •  •  1 

Elevator  constructor   2 

Wrecker    1 

Teamsters    96  73  104  273 

Chauffeurs    1 

Barnmen   9  10 

Factory  workers 

'Molders    7 

Machinists 18  12  27  57 

Butcher  workmen   7 

Firemen    6 

Switchmen 6 

Engineers    3  1  7  11 

Conductors    

Other  railway  employes 6 

Hostlers    

Bakers    

Blacksmiths    5 

Laborers    228  201  219  648 

Domestics    • 

Miscellaneous    85  24 

Unclassified    3 

Total  .^541  466  572  1,579 


206 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION  207 

TABLE   OF   NATIONALITY,  COUNTY  AGENT. 

1907  1908  1909 

Americans    200  185  242 

Assyrians    1 

Australian .......... 

Austrians ! .  1  26  14  18 

Belgians   -^ 

Bohemians    ] !  ]  18  10  14 

Bulgarians    \[[    _  1 

Canadians ".    "7  7  15 

Danes    [     2  6  8 

English    \  11  7 

Finns    1  ± 

Germans    '.'.'.  52  59  60 

French    2 

Greeks   ',   '3  !  '{ 

Galatian  ]_ 

Hollanders    [',     Q  3 

Hungarians    7  4  5 

Irish    49  54  56 

Italians    22  22  31 

Jews    2  . .  3 

Mexican    1 

Lithuanians    7  . .  2 

Macedonians   1 

Manxman 1  * . 

New  Mexico . .  . .  i 

New  Zealand  , ,  i 

Norwegians    9  6  10 

Poles 34  30  23 

Roumanians   1  2 

Russians 29  30  36 

Servian    1 

Slav    '. '.  i 

Scot  6  7 

Swedes    ;  12  11  15 

Swiss    1  1  2 

Turk    1 

Welsh    1 

Unclassified  38  5  4 


Totals    541  466  572 


EYE  AND  EAR  INFIRMARY,  CHICAGO. 

From  the  Eye  and  Ear  Infirmary  of  Chicago  the  Commission  took  200 
cases  for  investigation.  These  were  the  cases  received  for  "house  treatment" 
—that  is,  for  more  or  less  serious  treatment— during  1907,  1908  and  1909. 
These  did  not  include  purely  casual  cases  and  they  were  all  of  them,  further- 
more, directly  due  to  industrial  accidents. 

Twenty-six  of  these  men  were  building  tradesmen,  seventy-six  were  laborers, 
twenty-nine  were  miners,  thirty-six  metal  workers,  nine  were  wood  workers, 
five  were  railway  men,  five  teamsters,  and  fourteen  worked  at  varied  occu- 
pations. These  200  men  spent  8,730  days  at  the  hospital  or  an  average  of 
forty-three  and  one-half  each.  Seventeen  cases  are  not  recorded  as  to  length 
of  treatment. 


208 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION 


209 


Both  eyes  were  injured  in  fifty-five  cases,  and  142  suffered  an  injury  to 
one  eye.  Three  received  injuries  in  the  nose.  One  hundred  and  forty-nine 
patients  registered  from  Cook  County  and  fifty-one  from  other  places  in  the 
State. 


COUNTY   CASES. 

1907  1908  1909 

Eye  Cataract — 

By  injury    3  2 

Eyes  burned  8  . .  3 

Eye  burned . .  4 

kye  pierced    17  17  7 

Eyes  injured   29  . .  2 

!Eye  injured    29  20 


STATE  CASES. 

1907         1908 

Nose  fracture » . . 

Eye  Cataract — 

By  injury    1 

Eyes  burned  1  1 

Eye  burned 7 

Eye  pierced 6 

Eyes  injured 

Eye  injured  10  20 

Ears    2 


1909 
1 


CLASSIFICATION  BY  TRADES. 


1907  1908  1909 

Building    trades....  10  9  7 

;aborers    23  32  21 

Miners    8  15  6 

Metal  workers 16  12  8 


1907  1908  1909 

Wood  workers   5  3  1 

Miscellaneous   5  6  .3 

Railroads   3  2 

Teamsters    4  1 


Total  time  (days)  in  hospital,  7,748. 

Number  of  cases  giving  length  of  disability,  183. 

Total  number  of  cases  investigated,  200. 


STATE  FACTORY  INSPECTION. 

Under  the  terms  of  the  Health,  Safety  and  Comfort  law,  drafted  by  a  former 
Commission,  the  State  is  in  the  possession  of  data  (Factory  Department  re- 
3orts)  relative  to  injuries  in  certain  specified  lines  of  industry. 

The  law  is  still  in  the  first  year  of  its  operation,  but  the  first  six  months 

>f  its  trial,  from  Jan.  1,  1910,  to  July  1,  1910,  show  remarkable  results.  Two 
hundred  and  forty-eight  concerns  out  of  a  possible  total  of  5,000  report  1,649 

ndustrial  accidents,  of  which  thirty-six  were  fatal  and  seventy-eight  of  a 

sufficiently  permanent  or  serious  character  to  handicap  the  workman  in  his 
effort  to  maintain  himself  and  family. 

The  period  of  incapacitation  seems  to  average  22.7  days  and  the  average 

ige  of  the  injured  workman  would  indicate  that  31  years  closely  touched  the 
danger  line.  There  were  568  married  men  and  390  single  men.  Foreign- 
born  workmen  suffered  684  accidents,  native  Americans  163,  while  119  of 
those  who  met  with  death  or  disability  were  unclassified. 

It  is  interesting  to  note  the  large  number  of  men  who  did  not  return  to 
work  again  after  the  accident  despite  the  fact  that  the  latter  was  but  tem- 
porary. There  were  636  of  them,  more  than  a  third.  This  must  mean  in 
many  cases  a  search  for  employment  elsewhere.  If  this  assumption  is  cor- 
rect, then  the  length  of  average  disability  (22.7  days)  must  be  lengthened 
somewhat. 


210 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION 


211 


COMPILED  FROM  FACTORY  INSPECTION   DEPARTMENT  REPORTS 

(The  Commission  did  not  have  access  to  the  name  either  of  employer  or  employe  in 
these  cases.) 


INDUSTRY 

I 

3 

1 

X 

~c 

1 

Temporary  Disability 

Returned 
to  Work 

Did  not  Return 

3 

1 
I 

Railroads,  Supplies  and  Equipment.  . 
Foundries 

202 
153 

143 
128 

79 
35 
33 

25 
18 
15 
15 
9 
8 
5 
25 
20 
13 
11 
38 
25 

2 
2 

6 
3 

2 
1 
4 

1 

1 

5 
4 
1 

1 
1 
2 

6 
10 

19 

8 

5 
6 

2 
3 
1 
1 
1 
3 

194 
141 

118 
117 

72 

28 
29 

23 
14 

•    14 
14 
8 
5 
4 

90 
44 

35 
44 

34 
12 
9 

12 
3 

8 

1 

2,143 
805 

859 
1,035 

777 
250 
299 

263 
68 
152 

17 

110 
107 

102 
81 

43 
22 
20 

13 
14 
7 
15 
9 
7 
4 
16 
14 
7 
6 
24 
15 

Smelters,  Rolling  Mills  and  Merchant- 
able Metal  

Agricultural    Implements  Machinery 
and  Vehicles  

Manufacturers    of    Wire    and    Wire 
Products  

General  Machinery  

Electric  Light  and  Gas 

Electrical    Apparatus,    Valves    and 
Fittings                      

Lumber  and  Mill  W^ork 

Wood  Working  Industries  
Manufacturers  of  Structural  Steel  
Ship  Builders.  .            *  

Metal  Stamping                             .  . 

Food  Products                   

7 
1 
1 
2 
1 
1 

13 
15 
11 
8 
36 
22 

4 
2 
5 
4 
13 
8 

91 
30 
133 
75 

284 
172 

Meat  Packing                                 .  .  .  . 

Paper  Industries             .       

Cement,  Stone  and  Brick  
General  Manufacturing  
Unclassified                  

Totals                            •    • 

1,000 

36 

78 

886 

328 

7,453 

636 

212 


EMPLOYERS'  LIABILITY  COMMISSION 


ACCIDENTS  AND  CONJUGAL  RELATIONS  BY  NATIONALITY 
FACTORY  INSPECTION   DEPARTMENT  REPORTS 


NATIONALITY 

"3 

£ 

3 

Disability 

Conjugal  relations 

1 

1 

1 

bo 

Wido'era 

I1 

Polish  

204 
163 
88 
87 
47 
29 
27 
27 
26 
24 
24 
18 
17 
15 
14 
10 
10 
7 
6 
4 
6 
5 
4 
4 
4 
3 
2 
2 
2 
1 
1 
119 

8 
5 
2 
3 

1 

1 
1 
2 
1 

1 
1 

11 
21 
5 

8 
8 
2 
2 
3 
1 
1 
3 

185 
137 
81 
76 
39 
27 
24 
24 
24 
22 
19 
17 
17 
14 
12 
9 
7 
7 
6 
4 
5 
5 
4 
4 
4 
3 
1 
2 
2 
1 
1 
69 

130 
83 
53 
65 
20 
13 
13 
16 
13 
15 
13 
11 
12 
10 
6 
7 
8 
1 
3 
3 
3 
1 
3 
3 
2 
2 
1 

69 
78 
34 
18 
27 
16 
13 
11 
13 
9 
11 
7 
5 
4 
5 
3 
2 
6 
3 
1 
3 
4 

1 
2 
1 

2 

1 
1 

2 
1 

3. 

5 
1 

1 

American 

Austrian.                          

German.          ....        

Swedes  

Lithuanians  

Italians  
Hungarians  
Irish  

1 
1 

1 
2 

Colored  

Russian  

Macedonians 

1 

Armenians. 

1 
2 

Bulgarians  
Bohemians.           .  . 

English  

Slavs 

Greeks 

Finns 

Turks 

1 

Croatian. 

Servian  

Canadian  
Hollander  
Roumanian 

Hebrews 

Belgians  

1 

1 

French 

Norwegians 

1 

1 
53 

Arabian 

Welsh 

Not  given  
Totals  

8 

7 

42 



23 

1,000 

37 

77 

886 

568 

390 

9 

33 

EMPLOYERS'  LIABILITY  COMMISSION  ,213 

Data  at  hand  will  not  warrant  the  Commission  in  doing  more  than 
merely  presenting  the  tables.  The  Commission  did  not  investigate  the  indi- 
vidual cases — it  took  the  work  of  the  superintendent  or  other  official  who 
signed  the  blanks  required  by  law. 

Adding  to  the  above  the  5,106  known  accidents  on  steam  or  electric 
roads,  and  the  1,002  in  the  mines,  adding  likewise  the  number  of  building 
tradesmen,  teamsters,  laborers  and  others,  and  the  serious  extent  of  this 
situation  becomes  more  vivid  than  words  can  indicate. 

An  analysis  of  figures  secured  from  reports  received  by  the  Factory 
Inspector  shows  the  industrial  condition  of  the  State  clearly.  Neither  rail- 
roads, mines,  quarries,  contracting  or  outside  labor  is  included — factory  work 
alone  is  considered.  A  recapitulation  of  the  full  report  follows: 

Length  of  time  covered  in  report 6  mos. 

Total  number  reported 1,649 

Number  of  employers  reporting 248 

Industrial  concerns  under  scope  of  law  (estimated) 5,000 

Number  of  reports  classified 1,000 

Fatal  accidents    36 

*Permanent  disabilities  reported  78 

Returned  to  work  6 

Did  not  return  to  work . . 72 

Temporary  disabilities  reported  886 

Returned  to  work  '. 328 

Did  not  return  to  work 636 

Total  time  lost  by  employes  who  returned  to  work  (days) 7,453 

Average  duration  of  accidents  of  employes  who  returned  to  work  (days).  22.7 

Age — average   (969  cases) 31  yrs.  10  mos. 

Fatal  accidents    32  yrs. 

Permanent  disability  (returned  to  work) 29  yrs.    4  mos. 

"  (did  not  return  to  work). 29  yrs.  10  mos. 

Temporary  disability   (returned  to  work) 32  yrs.    1  mo. 

(not  returned)    27  yrs.  11  mos. 

Conjugal  relation — 

Married  56 

Single    • 39° 

Widowers    * 

Not  given   33 

Nationalities  specified 31 

*Fracture  of  skull,  disabled  arm  or  hand  (two  or  more  fingers  ampu- 
tated), severe  spinal  injury,  rupture,  etc. 


REPORTS    FROM 
AMERICAN   CONSULS 

DDDD 


We  quote  the  following  paragraphs  from  communications  received  from 
American  Consuls  resident  in  various  foreign  countries  where  compensation 
laws  are  in  operation. 

GERMANY. 

"The  cost  of  insurance  naturally  must  be  paid  by  somebody,  and  inevitably 
it  is  figured  in  as  a  part  of  the  general  expense  of  production,  paid  eventually 
by  the  consumer.  *  *  *  I  am  not  aware  that  employers  consider  the  law 
respecting  accident  insurance  in  particular  to  be  more  of  a  burden  than  the 
regulations  which  preceded  this  law  in  regard  to  industrial  liability.  Public 
sentiment  approves  of  compulsory  accident  insurance,  and  this  sentiment  is 
general,  not  only  among  the  working  classes,  but  among  all  classes  of  society." 


ENGLAND. 

"I  don't  think  the  compensation  law  has  worked  any  great  hardship  on 
employers.  They  can,  and  do,  insure  in  nearly  all  cases  at  reasonable  rates.  I 
have  never  known  any  increase  in  price  of  goods  on  account  of  the  workinj 
of  the  Act.  The.  Act  has  not  resulted  in  any  alteration  in  rates  of  wages 
downward.  As  a  matter  of  fact,  in  the  cotton  industry,  which  is  the  second 
largest,  wages  have  been  higher  since  the  Act  came  into  operation  than  ever 
they  were  previously.  *  *  *  I  think  the  law  as  at  present  is  generally 
accepted  as  correct  in  principle.  There  are,  of  course,  a  number  who  prefei 
no  law,  but  they  are  small  and  may  be  looked  upon  as  a  negligible  quantity. 
The  reason  why  half  wages  are  only  paid  is  because  it  was  argued  that  th( 
loss  should  be  equally  divided,  and  that  there  should  be  no  inducement  of- 
fered to  malingering." 

FRANCE. 

"Under  the  law  of  1898,  which  has  not  been  modified  in  this  respect,  acci- 
dents are  considered  as  'professional  risks,'  the  pecuniary  burden  of  which 
must  be  assumed  in  a  certain  measure  by  employers.    Whether  the  partie 
exercised  reasonable  care  or  were  guilty  of  contributory  negligence  is  not,  as 
a  rule,  taken  into  account." 

SPAIN. 

"The  employer  is  responsible  for  accidents  that  befall  operatives  in  th< 
exercise  of  their  work  or  employment,  unless  the  accident  is  caused  by  'foi 


EMPLOYERS'  LIABILITY  COMMISSION  215 

majeure,'  unconnected  with  the  work  or  employment  in  which  the  laborer  is 
engaged.  *  *  *  The  present  law  appears  satisfactory  and  is  considered  an 
advance  over  the  former  system." 

DENMARK. 

"While  it  would  appear  to  the  casual  observer  that  compulsory  insurance 
of  workmen  constitutes  a  direct  tax  on  the  manufacturer,  experience  here 
shows  that  in  reality  the  consumer  practically  pays  the  insurance  premium, 
it  being  included  by  the  employer  in  his  estimate  of  the  cost  of  production. 

The  advantages  of  the  Danish  law  are : 

1.  Absolute  protection  of  the  working  man. 

2.  Avoidance  of  all  litigation  connected  with  insurance  received  from 
accidents. 

3.  The  knowledge  on  the  part  of  the  employer  that  so  long  as  the  insur- 
ance is  paid  he  need  fear  no  losses  from  damage  suits,  etc. 

4.  If  a  working  man  is  injured,  those  depending  on  him  are  protected 
from  such  want  or  privation  as  might  be  caused  by  the  cessation  of  his  wages. 
Settlements   are  made  promptly   and   the  sufferer   and  his   dependents  are 
caused  as  little  inconvenience  as  possible." 

NORWAY. 

"As  far  as  we  know,  the  law  on  accident  insurance  is  satisfactory  to  the 
-  working  man.    We  do  not  know  definitely,  however,  whether  this  is  altogether 
the  case  with  the  employer." 

SWEDEN. 

»' 
"It  is  likely  that  employers  regard  damages  paid  to  workingmen  and 

their  families  as  ordinary  business  risks  and  expenses,  and  add  these  to  the 
cost  of  the  article  produced  as  far  as  the  state  of  the  market  allows.  *  *  * 
It  is  not  likely  that  a  workman  by  intentional  carelessness  would  risk  being 
crippled  or  being  disabled  for  some  time,  if  his  eventual  compensation  would 
be  less  than  that  he  could  earn  if  he  were  well  and  working;  but  unduly 
high  compensation  might  tempt  him  to  a  certain  extent." 

ITALY. 

"It  can  be  assumed  that  as  a  whole,  about  80  per  cent  of  the  premiums 
paid  by  the  employer  are  applied  to  the  liquidation  of  indemnities.  The  pres- 
ent Italian  regulation  on  accident  to  ttie  working  classes  is  accepted  with 
satisfaction  both  by  employers  and  working  people." 


NEW  ZEALAND. 

"The  employers,  as  a  rule,  at  once  provide  for  their  liability  by  insuring 
their  employes  against  accident  in  liability  insurance  companies.  Of  course, 
the  cost  is  passed  on  to  the  consumers  of  the  goods  produced.  The  Act  seems 
to  give  general  satisfaction  and  has  very  little  effect  on  the  amount  of  wages." 


216 


EMPLOYERS'^LIABILITY  COMMISSION 


BELGIUM. 

"Industry  or  commerce  does  not  bear  any  increased  burden  from  the 
of  compulsory  compensation,  and  no  increase  is  felt  in  prices  of  raw  mat< 
selling  prices  of  products,  or  wages." 


SWITZERLAND. 

"Each  employe  is  assessed  a  nominal  sum,  which  is  subtracted  from 
wages  and  applied  to  the  fund,  the  proprietors  of  the  factory  usually  payii 
two-thirds,  and  in  some  instances,  all  of  the  premiums  on  the  liability  i 
ance.     In  case  of  accident,  the  workman  receives  during  his  disability  coi 
pensation  equal  to  his  wages.    If  the  disability  is  permanent,  he  receives 
compensation  as  prescribed  by  law.    Loss  of  a  finger  is  usually  valued 
$400;  loss  of  a  hand,  $600  to  $1,000."  *     *     *     Both  employer  and  emploj 
seem  to  be  satisfied  with  the  law,  as  there  are  no  complaints  from  eith< 
source." 

NETHERLANDS. 

"Payments  are  made  by  the  Government  Insurance  Bank  at  Amsterdai 
with  which  all  employers  must  insure  their  employes.  The  law  is  general) 
satisfactory  to  the  working  people." 


TRADE  UNIONS 

•    anna 

On  the  afternoon  of  January  8,  1910,  a  conference  was  held  in  the  rooms 
of  the  Chicago  Federation  of  Labor  for  the  purpose  of  discussing  the  section 
of  Governor  Deneen's  message  calling  for  an  extraordinary  session  of  the 
General  Assembly  of  Illinois. 

There  were  present  for  the  Illinois  State  Federation  of  Labor,  Messrs. 
Kane,  Morris,  Morton  and  Wright;  for  the  United  Mine  Workers,  Messrs. 
Walker,  Farrington  and  Welch ;  for  the  Chicago  Federation  of  Labor,  Messrs. 
Fitzpatrick,  Nockels,  O'Neil,  Flora  and  Curtiss. 

Mr.  Wright  was  elected  Chairman  and  Mr.  Curtiss  Secretary. 

After  discussing  matters  of  interest  to  organized  labor  for  several  hours, 
the  conference  adjourned  for  lunch,  reconvening  at  7  o'clock  the  same  evening. 

Professor  G.  Taylor  was  introduced  and  told  of  a  conference  with 
Professor  Freund  and  his  connection  with  the  Governor's  call  for  a  special 
session  of  the  Legislature,  and  its  provision  for  a  Commission  on  liability 
matters.  An  informal  discussion  was  then  had,  looking  toward  harmonious 
action,  and  the  message  of  the  Governor  touching  on  the  subject  reads  as 
follows : 

EMPLOYERS'  LIABILITY. 

The  attention  of  the  General  Assembly  is  directed  to  the  necessity  of  legis- 
lation amending  the  laws  relating  to  the  liability  of  employers  for  injuries 
sustained  by  employes  in  the  course  of  their  employment.  Our  laws  upon 
this  subject  are  not  in  a  satisfactory  condition  and  I  believe  that  some  defi- 
nite action  looking  toward  revision  should  be  taken  at  the  present  session  of 
the  General  Assembly. 

During  their  legislative  sessions  of  1909,  the  legislatures  of  New  York, 
Wisconsin  and  Minnesota  created  commissions  for  the  investigation  of  the 
subject  of  employers'  liability  and  workmen's  compensation  and  I  understand 
that  these  commissions  contemplate  a  joint  meeting  for  the  discussion  of  these 
subjects.  It  would  therefore  be  very  advantageous  to  our  State  if  the  neces- 
sary action  were  taken  by  the  General  Assembly  at  this  session  to  create  such 
a  Commission  for  Illinois  so  that  it  might  join  with  the  commissions  of  the 
states  named  in  the  gathering  of  information  and  the  preparation  of  an 
exhaustive  report. 

The  importance  of  the  proposed  revision  of  the  employers'  liability  law  to 
a  great  industrial  State  like  Illinois,  makes  it  especially  necessary  that  the 
subject  should  be  thoroughly  investigated  by  a  Commission  composed  of  men 
representing  all  interests  concerned,  so  that  in  the  report  of  the  Commission 
the  General  Assembly  will  have  the  benefit  of  the  views  of  those  interested 
in  all  phases  of  this  important  question. 


21&  EMPLOYERS'  LIABILITY  COMMISSION 

I  therefore  urge  that  the  necessary  action  be  taken  at  the  present  session 
to  provide  for  the  appointment  of  such  a  Commission  and  that  the  Commis- 
sion be  directed  to  make  a  report  embodying  the  information  collected  and 
the  conclusions  reached  by  the  Commission  to  the  next  session  of  the  General 
Assembly. 

The  representatives  of  the  Chicago  Federation  then  withdrew,  and  pre- 
pared the  following  agreement  which,  on  their  return,  they  offered  as  a  basis 
for  united  action.  The  minutes  of  the  meeting  follow: 

"Since  there  has  been  included  in  the  call  for  the  special  session  a 
request  for  the  creation  of  a  Commission  to  consider  the  question  of  an 
employers'  liability  act,  thereby  preventing  the  enactment  of  any  employers' 
liability  legislation  at  the  special  session,  therefore  we  agree  to  the  amend- 
ment of  the  Hull  Bill  providing  that  the  Commission  be  composed  of  three 
employers  and  three  employes  to  meet  immediately  after  their  appointment 
and  to  report  their  findings  not  later  than  September  1,  1910,  to  the  Governor. 
In  the  event  of  their  failure  to  make  definite  and  final  report  by  September  1, 
1910,  the  Illinois  State  Federation  of  Labor,  the  United  Mine  Workers  of 
Illinois  and  the  Chicago  Federation  of  Labor  will  act  unitedly  in  the  session  of 
the  Illinois  Legislature  of  1911  for  an  employers'  liability  act." 

The  conference  then  took  up  the  Hull  Bill  for  discussion.  The  following 
proposed  amendments  were  agreed  to  after  submitting  them  to  a  vote  of  the 
conference  taken  by  groups  representing  the  three  parties  thereto : 

"That  the  Commission  shall  consist  of  three  each  as  per  above  agreement, 
and  that  Commission  shall  report  by  September  1,  1910." 

Moved  that  we  recommend  to  pay  members  of  the  Commission  $5.00  per 
day  for  actual  time  served  in  addition  to  expenses.  Carried.  Wright  voted 
"No."  (All  per  diem  received  by  Mr.  Wright  as  Secretary  of  the  Commission 
was  turned  into  the  treasury  of  the  Illinois  State  Federation  of  Labor.) 

Moved  that  we  recommend  an  amendment  providing  that  the  Governor 
shall  publish  the  findings  of  the  Commission  immediately  on  his  receipt  of 
same.  Carried. 

The  bill,  amended  to  conform  to  above  recommendations,  was  read  and 
offered  to  the  conference  by  Wright. 

Moved  by  Kane  that  it  be  adopted  by  the  conference  as  a  whole.    Carried. 

Moved  by  Nockels  that  the  agreement  offered  by  the  C.  F.  of  L.  repre- 
sentatives be  adopted  by  the  conference.  Carried. 

Moved  that  a  publicity  committee  be  appointed.  Carried.  The  chair 
appointed  Nockels,  Walker  and  Wright.  (This  committee  is  to  conduct  an 
agitation  in  favor  of  an  employers'  liability  law.) 

Moved  that  the  officers  of  the  State  Federation  be  authorized  to  present 
this  bill  to  the  Legislature.  Carried. 

Moved  to  adjourn.    Carried. 

CHAS.  E.  CURTISS,  Secretary. 

The  bill  referred  to  above  as  presented  to  the  joint  conference  follows : 


EMPLOYERS'  LIABILITY  COMMISSION  219 

HOUSE  BILL  NO.  42. 

Introduced  by  Committee  on  Appropriations,  January  26,  1910.     Read  a 
first  time,  ordered  printed  and  to  a  second  reading. 

A  BILL 

For  an  Act  to  Create  an  Employers'  Liability  Commission  and  Making  an 
Appropriation  Therefor. 


Section  1.  Be  it  enacted  by  the  people  of  the  State  of  Illinois  represented 
in  the  General  Assembly:  that  a  Commission  of  seven  (7)  members  is  hereby 
created  to  be  known  as  the  Employers'  Liability  Commission,  to  be  consti- 
tuted and  appointed  as  hereinafter  provided. 

Sec.  2.  The  Governor  shall  appoint,  within  twenty  days  after  this  act 
takes  effect,  as  members  of  said  Commission,  who  shall  be  citizens  of  Illinois, 
three  employers  of  labor  and  three  persons  who  are  either  employes  or  are 
known  to  represent  the  interests  of  workmen,  and  one  other  representative 
citizen  familiar  with  labor  conditions  and  problems  without  being  either  an 
owner  or  manager  of  an  industrial  establishment  or  an  employe  in  any  such 
establishment.  The  Governor  shall  designate  the  chairman  of  said  Commission 
and  shall  have  the  power  to  fill  any  vacancy  that  may  occur  in  its  member- 
ship; provided,  however,  the  vacancy  shall  be  filled  by  a  person  of  the  same 
qualifications  as  the  person  whose  vacancy  he  fills.  The  majority  of  the 
members  of  the  said  Commission  shall  constitute  a  quorum. 

Sec.  3.  Said  Commission  shall  investigate  the  problems  of  industrial 
accidents,  and  especially  the  present  condition  of  the  law  of  liability  for 
injuries  or  death  suffered  in  the  course  of  industrial  employment,  as  well  In 
this  State  as  in  other  States  or  Counties,  and  shall  inquire  into  the  most 
equitable  and  effectual  method  of  providing  for  compensation  for  losses  suf- 
fered as  aforesaid.  It  shall,  as  far  as  practical,  co-operate  with  other  Com- 
missions appointed  in  other  States  for  like  purposes.  It  shall,  on  or  before  the 
first  day  of  September,  1910,  report  its  conclusions,  together  with  the  draft  of 
such  bill  or  bills  as  may  be  deemed  appropriate,  to  the  Governor,  who  shall 
at  once  publish  such  reports  and  drafts  of  bill  or  bills  and  shall  also  transmit 
such  report  to  the  Forty-seventh  General  Assembly  for  action  thereon. 

Sec.  4.  The  Commission  shall  meet  at  the  call  of  the  chairman  and  elect 
a  secretary  from  among  its  members.  It  shall  cause  a  record  to  be  made 
and  kept  of  its  proceedings.  It  shall  have  power  to  employ  such  clerks  and 
assistants  as  may  "be  necessary,  and  shall  fix  their  compensation,  and  may 
incur  such  other  expenses  as  are  properly  incidental  to  the  work  of  the  com- 
mittee. The  members  of  the  Commission  shall  be  reimbursed  at  the  rate  of 
five  dollars  ($5.00)  per  diem  while  actually  engaged  on  the  work  of  such 
Commission,  and  reimbursed  for  their  actual  expenses  incurred  in  the  work 
of  said  Commission. 

Sec.  5.  The  sum  of  ten  thousand  dollars  ($10,000.00),  or  as  much  thereof 
as  may  be  necessary,  is  hereby  appropriated  for  the  expenses  of  the  Com- 
mission, and  the  auditor  of  public  accounts  is  hereby  authorized  to  draw  his 
warrant  for  the  foregoing  amount,  or  any  part  thereof,  in  payment  of  any 
expenses,  charges  or  disbursements  authorized  by  this  act  on  order  of  the 
Commission,  signed  by  its  chairman,  attested  by  its  secretary  and  approved 
by  the  Governor. 


220  EMPLOYERS'  LIABILITY  COMMISSION 

The  State  Board  of  Contracts  is  hereby  authorized  and  directed  to  pro- 
vide all  necessary  printing  for  said  Commission. 

Sec.  6.  Whereas,  an  emergency  exists;  therefore  this  Act  shall  be  in 
force  and  effective  immediately  after  its  passage  and  approval  by  the  Gov- 
ernor. 

Subsequent  changes  were  made  in  the  provisions  of  the  bill,  increasing 
the  number  of  members  to  twelve — six  employers  and  six  employes.  The  time 
for  reporting  the  findings  of  the  Commission  was  extended  from  September 
1st  to  September  15th,  and  to  these  amendments  no  objection  was  offered. 
(The  full  text  of  the  measure  which  passed  the  Legislature  is  printed  else- 
where in  this  report.) 

Suggestions  for  place  on  the  Commission  were  requested  from  the  Chicago 
Federation  of  Labor,  and  Mr.  John  Flora,  a  carpenter,  and  Mr.  John  O'Neil, 
a  city  fireman,  were  named.  Mr.  Flora  was  appointed  by  the  Governor.  From 
the  United  Mine  Workers,  Mr.  Carr's  name  was  submitted  and  the  appoint- 
ment followed.  Mr.  Boyle's  appointment  was  requested  by  his  brother 
international  officers  of  the  Switchmen's  Union  of  North  America.  Mr.  Geo. 
Golden,  an  international  officer  of  the  Teamsters'  Union,  received  a  place,  as 
did  Mr.  Daniel  J.  Gorman,  president  of  the  Street  Railway  Men's  Union  of 
Peoria.  The  sixth  member,  Mr.  Edwin  R.  Wright,  is  president  of  the  Illinois 
State  Federation  of  Labor. 

MEETINGJ3F  THE  COMMISSION. 

The  Commission  was  called  together  by  Governor  Deneen  at  the  Capitol, 
Springfield,  on  Thursday,  March  24,  1910.  Mr.  Ira  G.  Rawn,  president  of 
the  Monon  Railway,  was  elected  chairman  and  Mr.  Edwin  R.  Wright,  president 
of  the  State  Federation  of  Labor,  secretary.  After  the  death  of  Mr.  Rawn,  Mr. 
Charles  Piez,  president  of  the  Link  Belt  Company,  Chicago,  was  elected 
chairman. 

The  secretary  was  instructed  to  give  as  much  of  his  time  to  the  work  of 
the  Commission  as  could  be  spared  from  his  other  duties  to  the  work  of  the 
Commission.  He  was  empowered  to  engage  such  assistance  as  might  be 
necessary  and  to  submit  to  the  Commission  plans  for  expediting  the  work. 

Each  of  the  labor  representatives  was  placed  in  the  field  during  some 
period  of  the  life  of  the  Commission,  and  specified  lines  of  inquiry  intrusted 
to  his  care.  Mr.  Flora  took  up  the  investigation  of  fatal  accidents  reported 
to  the  Cook  County  Coroner's  office,  canvassed  the  trade  unions,  and  per- 
formed much  other  similar  work.  Mr.  Boyle  made  an  especial  study  of  rail- 
road employment  and  work  accidents  relative  thereto.  Mr.  Carr  took  up  the 
work  in  coal  mining  districts.  Messrs.  Golden  and  Gorman  for  the  teamsters 
and  street  railway  employes,  respectively,  made  inquiry  for  the  Commission 
along  the  lines  of  their  special  callings. 

In  an  attempt  to  secure  definite  and  positive  information  as  to  the  wishes 
of  the  working  people  of  the  state  a  circular  letter  was  drawn  by  the  secre- 
tary and  submitted  first  to  the  labor  members  of  the  Commission  and  then 
to  the  full  board  for  approval.  Receiving  indorsement  in  each  instance  the 
following  letter  and  blank  was  forwarded,  together  with  a  report  blank,  to 
about  1,700  trade  unions : 


EMPLOYERS'  LIABILITY  COMMISSION  221 


IRA     G.    RAWN,    CHAIRMAN  EDWIN     R.    WRIGHT, 


EMPLOYERS'  LIABILITY  COMMISSION 
OF  THE  STATE  OF  ILLINOIS 

317      FISHER      BUILDING 

TELEPHONE     HARRISON     6253 

CHICAGO 

IRA    G.    RAWN.    CHICAGO  PATRICK    CARR.    LADD 

E.T.    BENT.    CHICAGO  GEORGE    GOLDEN.     Cm CAOO 

P.    A.    PETERSON.    ROCKFORD  flFTOr?   CB                           M-   J  •    BOYLE.    CHICAGO 

CHARLES    PIEZ.    CHICAGO  DANIEL   J.    GORMAN.    PEORIA 

ROBERT   E.  CONWAY.  EAST  ST.  Louis  JOHN    FLORA.   CHICAGO 

MASON    B.    STARRING,   CHICAGO  EDWIN    R.  WRIGHT.   CHICAGO 

May  27,  1910. 
To  the  Officers  and  Members  of  the  Trade  Unions  of  Illinois : 

Gentlemen :  The  Employers'  Liability  Commission  of  the  State  of  Illinois 
(six  members  of  which  are  trades  unionists  in  good  standing)  is  endeavoring 
to  gather  together  authoritative  statistics  showing  the  number  of  accidents  to 
the  workmen  of  Illinois.  For  many  years  the  trade  unionists  have  contended 
that  a  heavy  toll  was  being  taken  of  the  bread  winners  of  our  state,  and  that 
laws  should  be  passed  to  protect  the  workers. 

In  order  to  make  good  our  contention  we  must  have  the  names  of  trade 
unionists   killed,   injured,   or   incapacitated   for   work   at   their   trade.     The 
enclosed  blank  should  be  filled  out  with  careful  attention  and  forwarded  with 
the  least  possible  delay  to  the  office  of  the  secretary  of  the  Commission. 
With  best  wishes,  fraternally, 

EDWIN  R.  WRIGHT, 
Secretary  Employers'  Liability  Commission. 
President  Illinois  State  Federation  of  Labor. 

Written  replies  were  received  from  thirty-six  unions  and  all  of  them 
favored  the  proposed  plan  of  a  compensation  measure.  No  objection  was  filed 
from  any  union.  Of  the  thirty-six  replies  twenty-nine  favored  the  employer 
paying  the  entire  premium  and  seven  favored  mutual  contributions.  Two  rail- 
way organizations  favored  a  change  from  present  relief  systems,  as  now  estab- 
lished on  several  roads,  and  two  others  wrote  that  they  could  not  reach  any 
agreement  as  to  what  form  compensation  should  take. 

RAILROAD  EMPLOYES. 

The  undecided  attitude  of  the  railway  organizations  as  to  what  the  mem- 
bers of  their  brotherhoods  wanted  led  to  a  conference  in  Chicago  of  the  legis- 
lative representatives  of  the  Brotherhood  of  Railway  Trainmen,  Switchmen's 
Union  of  North  America,  Order  of  Railway  Conductors,  Locomotive  Firemen 
and  Enginemen,  and  International  Association  of  Car  Workers.  The  meeting 
was  called  by  the  secretary  of  the  Commission  to  meet  in  the  rooms  of  the 
Employers'  Liability  Commission.  All  expenses  incident  thereto  were  met  by 
payment  from  the  appropriation  authorized  in  the  creation  of  the  liability 
board. 


222 


EMPLOYERS'  LIABILITY  COMMISSION 


'  iCtabiittg  (Eommtaatan 
of  flj?  g>tai?  0f  ilUutotH 


317   FISHER    BUILDING  TEL.  HARRISON    6253 

CHICAGO 
EDWIN    R.  WRIGHT,  SECRETARY 

Name  of  organization 

Secretary  

Address 

Number  of  accidents  resulting  in  death 1908;  1009 

Number  of  accidents  causing  loss  of  more  than  two  weeks1  time 

Wages  per  hour 

Hours  of  labor  per  day 

Are  you  in  favor  of  a  system  under  which  all  accidents  to  employees  shall  be  com- 
pensated for  without  regard  to  negligence,  but  under  which  the  compensation  shall 
be  limited  in  amount?  Please  state  reasons  for  your  answer: 

If  you  are  in  favor  of  such  a  plan,  are  you  of  the  opinion  that  the  expense  should  be 
borne  by  the  employer,  or  shared  between  employer  and  employee?. 

What,  in  your  experience,  is  the  value  of  relief  associations  of  employees? 

What  are  the  methods  and  provisions  of  your  union  for  tlw  care  of  its  injured  mem- 
bers?    

How  large  a  percentage  of  the  expenses  of  your  union  per  annum  are  paid  for  the 
relief  of  injured  members? 


Kindly  fill  out  the  blank  on  the  back  of  this  report,  as  well  as  answering  the  above 
questions,  and  return  with  the  least  possible  delay  to  the  Secretary  of  the  Commission. 


EMPLOYERS'  LIABILITY  COMMISSION 


223 


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224  EMPLOYERS'  LIABILITY  COMMISSION 

After  canvassing  the  situation  in  detail  the  following  letter  was  drafted 
and  authorized  sent  to  each  railway  organization  in  the  state : 

To  the  Railroad  Organizations  in  Illinois.  Chicago,  July  14,  1910. 

Gentlemen  and  Brothers : 

On  Thursday,  July  7th,  a  conference  was  held  in  the  rooms  of  the  Employ- 
ers' Liability  Commission,  Chicago,  for  the  purpose  of  conferring  on  the  best 
manner  of  advancing  the  interests  of  the  railroad  employes  of  the  State  along 
legislative  lines.  The  meeting  was  attended  by  the  legislative  representatives 
of  the  Brotherhood  of  Railway  Trainmen,  Order  of  Railway  Conductors, 
Brotherhood  of  Firemen  and  Enginemen,  Switchmen's  Union  of  North  Amer- 
ica and  International  Association  of  Car  Workers,  together  with  the  president 
of  the  Illinois  State  Federation  of  Labor. 

Inasmuch  as  we  find  from  the  official  records  of  the  State  of  Illinois  that 
an  average  of  321  men  are  fatally  injured  and  3,924  men  non-fatally  injured 
every  year,  the  need  for  united  action  is  apparent.  The  committee,  after  care- 
fully considering  the  question  of  procedure,  hereby  officially  request  the  offi- 
cers and  members  of  the  brotherhood  to  collect  at  once  all  possible  data  and 
forward  the  same  to  the  secretary  of  the  Liability  Commission. 

We  are  unanimously  of  the  opinion  that  the  present  average  settlement 
for  industrial  accident  is  wholly  inadequate  and  that  the  substitution  of  a 
more  equitable  plan  is  desirable,  but  until  we  learn  just  what  amounts  are 
received  for  injuries,  we  are  at  a  loss  in  perfecting  our  agreement.  All  data 
will  ~be  strictly  confidential  and  no  names  will  ~be  used  in  our  report,  which 
will  be  immensely  valuable  in  showing  the^inequality  of  our  present  liability  laws. 

Kindly  give  name  of  injured  party,  road  employed  by,  whether  married  or 
single,  number  of  dependents,  if  any,  date  and  nature  of  injury,  time  lost, 
medical  expense,  and  any  further  information  readily  obtainable. 

All  answers  should  be  directed  to  Edwin  R.  Wright,  317  Fisher  Building, 
Chicago.  Information  may  be  had  of  Mr.  Wright  or  from  any  representative 
of  the  joint  conference.  Respectfully, 

EDWIN  R.  WRIGHT, 

President  Illinois  State  Federation  of  Labor, 
Secretary  Employers'  Liability  Commission. 
HARRY  F.  SMITH, 

Chairman  Legislative  Board,  B.  of  R.  T.,  Beards- 
town,  111. 
C.  H.  EVERLY, 

Legislative  Board,  B.  of  R.  T.,  3522  Walnut  St., 

Chicago. 
M.  J.  BOYLE, 

Member  Executive  Board,  S.  U.  of  N.  A.,  317  Fish- 
er Bldg.,  Chicago. 
W.  W.  CARROLL, 

Chairman  Legislative  Board  O.  R.  C.,  115  Frye 

Ave.,  Peoria,  111. 
GEO.  GODING, 

Chairman  Legislative  Board,  B.  of  L.  F.  and  E., 

6133  Drexel  Ave.,  Chicago. 
GEO.  W.  GIBSON. 

International   Secretary   I.   A.  of  C.   W.,   Morton 
By  order  of  the  Conference.         Bldg.,  Chicago. 


EMPLOYERS'  LIABILITY  COMMISSION]  225 

PRESIDENT  CARTER  ON  COMPENSATION. 

The  following  letter  from  President  W.  S.  Carter  of  the  Brotherhood  of 
Locomotive  Firemen  and  Enginemen  probably  expresses  the  feeling  among  rail- 
road employes  as  a  whole : 

BROTHERHOOD  OF  LOCOMOTIVE  crigjj^ea 

FIREMEN  AND  ENGINEMEN 

W.  S.  CARTER,  President. 

Peoria,  Illinois,  July  28,  1910. 
Mr.  Edwin  R.  Wright, 

President  Illinois  State  Federation  of  Labor, 
317  Fisher  Bldg.,  Chicago,  Illinois. 

Dear  Sir  and  Brother : 

I  have  received  your  letter  of  the  27th  instant,  and  note  the  dates  on 
which  the  Employers'  Liability  Commission  will  hold  meetings.  I  regret 
exceedingly  that  I  am  called  to  Texas  on  important  matters  and  probably  will 
not  return  before  your  Chicago  meeting. 

Perhaps  I  can  refer  in  this  letter  in  a  brief  manner  to  what  I  would  like 
to  present  to  your  Commission,  and  ask  you  to  do  it  for  me  in  my  absence. 

In  drafting  a  tentative  Employers'  Liability  and  Employes'  Compensa- 
tion Bill  I  believe  it  would  be  unwise  to  relieve  the  employer  of  all  liability 
for  defective  machinery,  appliances,  etc.,  for  in  that  event  I  believe  we  would 
see  a  great  increase  in  deaths  and  injuries.  My  purpose  in  all  legislation  is  to 
prevent  deaths  and  injuries,  rather  than  to  secure  compensation.  It  is  much 
better  that  the  law  remain  as  it  is,  if  under  the  present  law  thousands  of  lives 
and  limbs  are  saved.  A  few  hundred  dollars  to  the  widow  and  orphans  of 
a  man  killed  in  a  railroad  wreck,  or  by  defective  machinery,  is  no  exchange 
for  the  life  and  service  of  that  man  for  his  family. 

In  fixing  compensation  I  believe  that  the  "expectancy"  of  life  should  be 
considered.  Let  us  compare  a  young  engineer  of  twenty-five  years,  a  wife 
and  three  small  children,  with  an  old  engineer  of  sixty  years,  whose  wife  per- 
haps has  long  been  dead  and  all  of  his  children  are  married  and  doing  well. 
In  some  of  the  compensation  bills  proposed  the  purpose  seems  to  base  the 
amount  of  compensation  upon  the  earning  capacity  of  the  deceased  employe 
at  the  time  of  his  death.  Under  such  a  rule  the  engineer  of  sixty  years, 
after  having  almost  completed  his  expectancy  of  life,  and  after  having  fulfilled 
all  of  his  obligations  to  his  family,  would  receive  a  larger  compensation  than 
the  young  engineer  who  had  the  responsibilities  of  life  ahead  of  him,  the 
responsibility  of  providing  for  a  wife  and  three  small  children.  In  the  event 
of  the  death  of  the  older  engineer  no  one  would  be  found  dependent  upon 
him.  In  the  event  of  the  death  of  the  younger  engineer  we  would  find  a 
widow  and  three  small  children,  to  be  educated  and  to  be  provided  for  over  a 
period  of  many  years.  Again,  I  believe  that  a  compensation  bill  should  have 
regard  for  the  expectancy  of  life  just  as  a  jury  does  in  a  "personal  damage 
suit"  under  our  existing  laws. 

In  any  event  if  we  are  to  have  a  compensation  bill,  which  deprives  the 
injured  employe  (or  his  surviving  family)  of  entering  suit  to  recover  from 
the  employer,  such  compensation  should  be  adequate.  Our  members  would 


226  EMPLOYERS'  LIABILITY  COMMISSION 

greatly  regret  to  see  a  law  which  would  give  a  widow  and  several  small 
children  three  or  four  hundred  dollars  as  "compensation"  when  they  had 
been  robbed  of  the  support  of  the  family  for  many  years  to  come. 

With  best  wishes  and  thanking  you  for  your  assistance  in  this  matter, 
I  remain,  Yours  Fraternally, 

W.  S.  GARTER, 
President. 

ATTEMPT  TO  SECURE  STATISTICS. 

The  work  of  gathering  data  continued  unabated  until  Sept.  1st.  The 
labor  members  of  the  Commission  worked  unceasingly,  without  regard  to 
hours  or  trying  conditions.  Hampered  on  every  turn  by  lack  of  adequate 
record  of  accidents  and  indifference  on  the  part  of  men  who  should  have 
freely  offered  their  co-operation,  the  showing  made  in  this  report  reflects  the 
energy  of  the  individual  members  of  the  Commission  rather  than  a  unified 
demand  from  any  organization  for  any  specified  remedy. 

The  Commission  also  received  from  President  Gompers  of  the  American 
Federation  of  Labor  a  series  of  model  drafts  of  liability  and  compensation 
measures.  These  were  presented  early  in  the  work  of  the  Commission  and 
the  subsequent  first  draft  of  a  bill  followed  many  of  the  provisions  contained 
therein. 

A  liability  measure,  patterned  after  a  bill  submitted  by  the  Illinois  State 
Federation  of  Labor  and  the  joint  labor  lobby  to  the  last  Legislature,  was 
included  in  the  American  Federation  model  bills  and  is  here  given  in  full : 

EMPLOYERS'   LIABILITY   BILL. 

A  bill  to  amend  the  law  relating  to  the  liability  of  employers  for  injuries 
to  their  employes. 

I.    Be  it  enacted  by  the  General  Assembly  of : 

(1)  Where,   after  the  commencement  of  this  Act,   personal   injury   is 
caused  to  any  employe,  by  reason  of  the  negligence  of  his  employer,  or  of 
any  other  person  in  the  service  of  such  employer,  the  employe,  or  in  case 
of  death,  his  representatives,  shall  have  the  same  rights  to  compensation  and 
remedies  against  such  employer  as  if  the  employe  had  not  been  an  employe 
of,  nor  in  the  service  of  such  employer,  nor  engaged  in  his  work :     Provided, 
however,  That  the  fact  that  such  employe  may  have  been  guilty  of  contribu- 
tory negligence  shall  not  bar  a  recovery  in  any  action  hereafter  brought  to 
recover  such  compensation,  but  the  damages  may  be  diminished  by  the  jury 
in  proportion  to  the  amount  of  negligence  attributable  to  such  employe;  and 
provided  further,  Thut  no  such  employe  shall  be  held  in  such  action  to  have 
been  guilty  of  contributory  negligence  in  any  case  where  the  violation  of 
the  employer  of  any  statute  enacted  for  the  safety  of  employes  contributed  to 
his  injury. 

(2)  An  employe  shall  not  be  deemed  to  have  assumed  any  risk  incident 
to  his  employment  by  reason  only  of  his  having  entered  upon,  or  continued  in, 
the  employment  after  he  knew  of  the  risk,  and  shall  in  no  event  be  held  to 
have  assumed  any  risk  arising  by  reason  of  the  negligence  of  his  employer 
or  of  any  person  in  the  service  of  such  employer. 

(3)  All  questions   of   negligence   and   contributory   negligence  and   as- 
sumption of  risk  shall  be  for  the  jury. 


EMPLOYERS'  LIABILITY  COMMISSION  227 

II.  (1)     A  contract  whereby  an  employe  relinquishes  any  right  to  com- 
pensation to  himself  or  his  representatives  for  personal  injury  caused  to  such 
employe  by  reason  of  the  negligence  of  his  employer  or  of  any  person  in  the 
service  of  his  employer  shall  not,  if  made  before  the  accrual  of  the  right, 
constitute  a  defense  to  any  action  brought  for  the  recovery  of  such  compen- 
sation. 

(2)  Where  an  employer  has  contributed  to  an  insurance  or  fund  pro- 
viding any  benefit  for  an  employe  or  his  representatives  in  case  of  injury  or 
death,  in  any  action  brought  against  such  employer  for  negligence  in  caus- 
ing such  injury  or  death,  the  jury  in  assessing  the  amount  of  compensation 
payable  shall  treat  as  a  payment  on  account  of  the  employer's  liability  so 
much  of  any  money  which  has  been  or  will  be  paid  to  the  employe  or  his* 
representatives  out  of  the  insurance  or  fund  as  in  the  opinion  of  the  jury 
is  attributable  to  the  employer's  contribution,  but  the  agreement  to  accept, 
or  acceptance  of  such  benefit  in  whole  or  in  part  by  such  employe  or  his  rep- 
resentatives, shall  not  constitute  a  defense  to  such  action. 

III.  In  this  Act:     (1)  The  term  "employe"  includes  every  person  who 
has  entered  into  employment  to  give  service,  or  who  works  under  a  contract 
or  agreement  of  service  or  apprenticeship  with  an  employer. 

(2)  The  term  "employer"  includes  individuals,  partnerships,  and  bodies 
of  persons  corporate  or  incorporate,  and  shall  be  construed  as  including  the 
representatives  or  receivers  of  deceased,  defunct  or  insolvent  employers. 

(3)  The  term  "representatives"  means  legal  representatives  and  shall  be 
construed  as  including  the  persons  entitled  to  compensation  in  case  of  death 
of  any  employe. 

IV.  Nothing  in  this  act  shall  prejudicially  affect  any  right  or  remedy 
to  which  an  employe  is  entitled  independently  of  this  Act. 

V.  This  Act  shall  be  in  force  from  and  after  its  passage  and  shall  apply 
to  all  contracts  of  employment  thereafter  made  and  entered  into. 

t 

A.  F.  OF  L.  COMPENSATION  BILL. 

In  connection  with  the  first  (liability)  bill  a  series  of  compensation 
measures  were  also  forwarded  by  Mr.  Gompers.  The  following  was  pre- 
sented the  Commission  and  given  consideration  by  the  attorney  preparing 
the  first  draft  or  tentative  bill,  which  was  discussed  at  the  public  meetings 
throughout  the  state: 

To  provide  compensation  for  accidents  in  dangerous  occupations,  with- 
out litigation  therefor. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  

That  if  in  any  employment  to  which  this  Act  applies  personal  injury  or 
death  by  accident,  arising  out  of  and  in  the  course  of  the  employment,  is 
caused  to  any  employe,  the  employe  so  injured,  or  in  case  of  death,  the 
members  of  his  family,  as  hereinafter  defined,  shall  be  entitled  to  receive 
from  his  employer,  and  the  said  employer  shall  be  liable  to  pay,  the  com- 
pensation provided  for  in  this  Act.  This  Act  shall  apply  to  every  employe 
who  shall  at  the  time  of  his*  accident  be  engaged  in  employment  on,  in  or 
about  any  railway,  street  railway,  factory  (including  any  premises  where 
steam,  water  or  other  mechanical  power  is  used  in  aid  of  any  manufactur- 


228  EMPLOYERS'  LIABILITY  COMMISSION 

ing  or  other  process  for  gain,  or  on  which  explosives  or  inflammables  are 
made  or -used),  mine,  quarry,  or  any  engineering,  building  or  construction 

work  in  the  State  of   The  employers  to  whom  this  Act  shall 

apply  shall  be  any  person  or  persons,  association,  partnership  or  corporation 
carrying  on  any  such  industry  as  aforesaid.  Save  as  herein  provided,  no 
such  employer  shall  be  liable  for  any  injury  or  death  for  which  compensa- 
tion is  recoverable  under  this  Act. 

Sec.  2.  The  employer  shall  not  be  liable  under  this  Act  in  respect  of  any 
injury  which  does  not  disable  the  employe  for  a  period  of  at  least  two  weeks 
from  earning  full  wages  at  the  work  at  which  he  was  employed,  except  for 
medical  fee,  as  hereinafter  provided,  but  for  that  period  shall  remain  liable 
as  though  this  Act  had  not  been  passed. 

Sec.  3.  When  the  injury  or  death  was  approximately  caused  by  (a)  the 
criminal  act  or  omission,  or  (b)  the  negligence  (including  thereunder  neg- 
ligence in  choice  of  servants,  but  excluding  the  negligence  of  competent  serv- 
ants and  their  negligence  in  performance  of  employers'  duties  delegated  to 
them)  of  the  employer,  committed  or  omitted  by  him  individually,  if  the  em- 
ployer be  a  natural  person,  or  by  any  of  its  officers  individually,  if  the  em- 
ployer be  a  corporation,  or  by  any  of  its  partners  individually,  if  the  employer 
be  a  co-partnership,  or  by  any  member  of  the  association  individually,  if  the 
employer  be  an  association,  the  liability  independent  of  this  Act  of  (such 
employer)  shall  not  be  affected  by  this  Act;  but  in  such  case  the.  injured 
employe,  or  in  case  of  death  the  members  of  his  family,  as  herein  defined, 
may  elect  between  claiming  compensation  under  this  Act  or  pursuing  any 
remedy  which  was  available  before  the  passage  of  this  Act. 

Sec.  4.  If  it  is  proved  that  injury  or  death  results  from  the  deliberate 
intention  of  the  employe  to  produce  such  result,  or  his  wilful  failure  to  use 
a  protection  against  accident  required  by  statute  and  provided  for  him,  or 
solely  by  his  deliberate  breach  of  statutory  regulations  affecting  safety  of 
life  or  limb,  or  by  reason  of  his  intoxication,  any  compensation  claimed  by 
him  under  this  Act  shall  be  disallowed. 

Sec.  5.  Any  employer  who  would  be  liable  under  this  Act  to  employes 
if  directly  employed  by  him  shall  be  liable  hereunder  to  the  employes  of  in- 
dependent contractors  for  accidents  occurring  to  them  in  the  course  of  any 
work  undertaken  by  such  employer,  or  for  the  purposes  of  his  business,  on 
or  in  or  about  the  premises  or  places  under  his  control  or  management. 
Such  liability  shall  be  to  pay  such  compensation  as  would  be  payable  if  the 
employe  has  been  directly  employed  by  him,  but  at  the  wages  he  was  actually 
receiving.  Any  employer  who  shall  have  paid  compensation  under  this  Act 
for  any  accident,  or  any  independent  contractor  who  has  indemnified  himself, 
shall  be  subrogated  to  all  the  rights  of  recovery  therefor  of  the  person  or 
persons  to  whom  such  compensation  shall  have  been  paid.  An  employe  may, 
however,  if  he  so  elects,  proceed  against  or  recover  compensation  directly 
from  any  other  person  liable  for  his  accident  instead  of  from  the  employer. 
Sec.  6.  Proceedings  for  the  recovery  of  compensation  under  this  Act 
shall  not  be  maintainable  unless  written  notice  of  the  accident,  stating  the 
time,  place  and  cause  thereof,  and  the  name  and  address  of  the  person 
injured  has  been  given  within  thirty  days  after  the  happening  of  the  acci- 
dent, and  unless  claim  for  compensation  has  been  made  within  six  months 


EMPLOYERS'  LIABILITY  COMMISSION  229 


from  the  occurrence  of  the  accident,  or  in  case  death  results  therefrom, 
within  six  months  from  the  time  of  death.  Provided,  always,  that  the  want 
of,  or  any  defect  in  such  notice  shall  not  be  a  bar  if  the  employer  is  not 
thereby  prejudiced,  or  if  such  want  or  defect  was  occasioned  by  mistake 
or  other  reasonable  cause.  The  failure  to  make  a  claim  within  the  period 
above  specified  shall  not  be  a  bar  if  such  failure  was  occasioned  by  physical 
or  mental  incapacity  or  other  reasonable  cause.  Such  notice  shall  be  deliv- 
ered to  or  sent  by  registered  letter  addressed  to  the  employer  at  his  office, 
place  of  business  or  last  known  residence. 

Sec.  7.     Scale  and  condition  of  compensation: 

There  shall  be  selected  by  every  employer  subject  to  this  Act  one  or 
more  doctors  who  shall  be  approved  by  the  Commission  of  Arbitration  and 
Award,  hereinafter  constituted  and  referred  to  as  the  Commission,  and  it 
shall  be  the  duty  of  such  doctors  to  report  forthwith  to  the  Commission 
every  accident  under  this  Act,  and  also  whenever  practicable  to  render  pre- 
liminary medical  attention  to  the  injured,  and  they  shall  be  paid  by  the  em- 
ployer a  fee  of  one  dollar  for  such  service  in  each  case. 

The  amount  of  compensation  payable  under  this  Act  shall  be : 

(a)  Where  death  results  from  the  injury : 

(1)  If  the  employe  leaves  any  dependents  who  at  the  time  of  the  acci- 
dent were  wholly  dependent  upon  his  earnings,  a  sum,  equal  to  his  earnings  in 
the  employment  of  the  same  employer  during  the  three  years  next  preceding 
the  injury,  or  the  sum  of  one  thousand  dollars,  whichever  of  these  sums  is 
the  larger,  but  not  exceeding  in  any  case  five  thousand  dollars:    Provided, 
That  the  amount  of  any  weekly  payments  made  under  this  Act  shall  be  de- 
ducted from  such  sum;  and  if  the  period  of  the  employe's  employment  by 
the  same  employer  has  been  less  than  the  said  three  years,  then  the  amount 
of  his  earnings  during  the  said  three  years  shall  be  deemed  to  be  nine  hun- 
dred and  thirty-six  times  his  average  daily  earnings  during  the  period  of 
his  actual  employment  under  the  same  employer. 

(2)  If  the  employe  leaves  only  dependents  who  at  the  time  of  the  acci- 
dent were  partly  dependent  upon  his  earnings,  such  sum,  not  exceeding  in 
any  case  the  amount  payable  under  the  foregoing  provisions  of  this  section 
as  may  be  agreed  upon  or  in  default  of  agreement  may  be  determined  on 
arbitration  under  this  Act. 

(3)  If  the  employe  leaves  no  dependents  who  at  the  time  of  the  accident 
were  dependent,  the  reasonable  burial  and  medical  expenses,  not  exceeding 
in  all  two  hundred  dollars. 

(b)  Where  total  or  partial  incapacity  results  from  the  injury: 

A  weekly  payment  during  the  incapacity  after  the  second  week,  not  ex- 
ceeding one-half  of  his  average  weekly  earnings  in  such  employment,  during 
the  previous  twelve  months  if  he  has  been  so  long  employed,  but  if  not,  then 
for  any  less  period  during  which  he  has  been  in  the  employment  of  the  same 
employer.  If,  however,  the  employe  is  a  minor  whose  average  weekly  earn- 
ings are  less  than  ten  dollars,  his  compensation  shall  be  a  payment  not  ex- 
ceeding his  full  average  earnings.  Such  weekly  payments  shall  not  in  any 
case  exceed  fifteen  dollars,  and  it  shall  not  extend  over  a  period  exceeding 
ten  years,  unless  the  injured  will  thereafter  be  permanently  totally  disabled 
from  engaging  in  any  work  or  occupation  for  wages. 


230  EMPLOYERS'  LIABILITY  COMMISSION 

Sec.  8.  All  death  payments  under  this  Act  shall  be  paid  into  court  where 
the  accident  happens,  and  also  any  payments  to  persons  under  legal  dis- 
ability if  the  court  on  application  to  it  so  directs.  Any  question  as  to  who 
is  a  dependent  and  the  amount  payable  to  each  dependent  shall  be  decided 
by  the  said  court,  if  not  settled  before  such  payment  into  court. 

The  receipt  of  the  court  shall  be  a  sufficient  discharge  for  any  amount 
paid  in,  and  it  shall  be  apportioned  and  distributed  for  the  benefit  of  the 
persons  entitled  thereto  in  such  manner  as  the  court  may  think  best.  Pro- 
vided, that  the  court  may  thereafter  on  application  to  it  vary  any  of  its 
previous  orders  or  apportionments. 

The  courts  referred  to  in  this  Act  shall  be  the  Probate. 

Sec.  9.  The  Commission  shall  make  regulations  under  which  an  em- 
ploye injured  shall,  if  so  requested  by  the  employer,  submit  himself  for 
examination  by  a  duly  qualified  doctor,  furnished  and  paid  by  the  employer 
as  soon  as  practicable  after  his  injury,  and  also  from  time  to  time  during 
the  receipt  by  him  of  any  weekly  payments  hereunder.  A  copy  of  the  report 
of  the  employer's  doctor  shall  be  furnished  to  the  employe,  or  if  no  such 
examination  be  made,  then  the  employe  shall  be  examined  by  his  own  doctor 
and  furnish  a  report  thereof  to  his  employer.  Such  reports  shall  be  fur- 
nished within  six  days  after  the  examination.  If  a  dispute  then  exists  as 
to  the  employe's  condition,  or  as  to  whether  or  to  what  extent  the  incapacity 
is  due  to  the  accident,  such  regulations  shall  provide  for  the  examination 
of  the  employe  by  a  medical  referee  on  an  order  to  that  effect  being  given 
by  the  court  hereinafter  specified,  and  the  payment  of  a  fee  not  exceeding 
five  dollars,  to  be  taxed  by  said  court.  The  certificate  of  the  medical  referee 
shall  be  conclusive  evidence  of  the  matters  so  certified.  If  the  employe  re- 
fuses to  submit  himself  to  such  examinations,  or  in  any  way  obstructs  the 
same,  his  right  to  take  compensation  and  to  take  or  to  prosecute  any  pro- 
ceeding under  this  Act  in  relation  to  compensation  may  be  suspended,  and 
his  compensation  during  such  period  of  suspension  shall  be  forfeited  until 
such  examination  has  been  made. 

Sec.  10.  Any  weekly  payment  may  be  reviewed  at  the  request  either  of 
the  employer  or  of  the  employe,  and  on  such  review  may  be  ended,  dimin- 
ished or  increased,  subject  to  the  maximum  provided  above.  Provided,  That 
where  the  employe  was  at  the  date  of  the  accident  under  twenty-one  years 
of  age,  and  the  review  takes  place  more  than  twelve  months  after  the  acci- 
dent, the  amount  may  be  increased  to  any  amount  not  exceeding  50  per  cent 
of  the  weekly  sum  the  employe  would  probably  have  been  earning  at  the 
date  of  the  review  if  he  had  remained  uninjured,  but  not  in  any  case  exceed- 
ing ten  dollars. 

Sec.  11.  Where  any  weekly  payment  has  been  continued  for  not  less 
than  six  months,  the  liability  therefor  may  on  application  by  or  on  behalf 
of  the  employer  or  employe,  respectively,  be  redeemed  by  payment  of  a  lump 
sum,  but  if  the  incapacity  is  permanent  or  total,  the  sum  shall  not  exceed 
the  purchase  price  of  an  annuity  yielding  75  per  cent  of  the  weekly  pay- 
ments calculated  under  the  American  Experience  Table  of  Mortality  at  4  per 
cent  per  annum. 


EMPLOYERS'  LIABILITY  COMMISSION  231 

Sec.  12.  If  an  employe  receiving  a  weekly  payment  ceases  to  reside  in 
the  United  States,  he  shall  thereupon  cease  to  be  entitled  to  receive  any 
weekly  payment. 

Sec.  13.  In  default  of  agreement  between  the  parties  interested,  the 
following  questions  shall  be  settled  by  arbitration  under  this  Act,  subject  to 
judicial  procedure  as  hereinafter  provided:  All  questions  as  to  the  employ- 
er's liability  to  pay  compensation  and  the  amount  payable,  and  as  to  the 
duration,  review  or  redemption  by  a  lump  sum  of  any  weekly  payment;  any 
question  as  to  whether  the  employe  is  one  to  whom  the  Act  applies,  and 
whether  he  has  dependents,  and  if  so  the  amounts  payable  to  them ;  all  ques- 
tions as  to  the  liability  of  an  independent  contractor,  and  of  any  third  party 
by  consent,  under  Section  5. 

Arbitration  proceedings  shall  be  as  follows: 

First:  The  employer  and  his  employes  may  choose  a  committee,  whose 
unanimous  adjudication  of  a  matter  within  three  months  shall  be  final  and 
binding  on  both  parties,  unless  either  objects  in  writing  before  it  is  considered. 

Second:  On  failure  of  such  unanimous  adjudication  the  matter  shall  be 
investigated  and  settled  by  a  single  arbitrator  agreed  on  by  the  parties,  and 
in  the  absence  of  such  agreement  a  statement  of  the  facts  shall  be  filed  in 
court  in  such  form  as  may  be  prescribed  by  the  rules  of  said  court,  and 
unless  within  thirty  days  thereafter  a  written  application  for  a  jury  trial  is 
also  filed,  a  jury  trial  shall  be  deemed  to  have  been  waived,  and  the  matter 
shall  then  be  determined  by  the  judge  of  the  said  court,  or  by  a  referee 
appointed  by  the  said  court  under  such  procedure  as  may  be  prescribed  by 
rules  of  court,  and  such  referee  shall  for  the  purposes  of  this  Act  have  full 
power  to  procure  witnesses  and  all  evidence  which  he  may  regard  as  necessary 
to  his  decision,  and  his  fees  shall  be  fixed  by  the  Commission  and  paid  out  of 
the  appropriation  for  this  Act.  Said  court  may  compel  the  attendance  of 
witnesses  and  the  production  of  evidence  before  said  referee  in  the  same 
manner  and  under  the  same  penalties  as  apply  to  the  attendance  of  witnesses 
and  the  production  of  evidence  before  said  court. 

Any  question  of  law  may  be  submitted  for  the  opinion  of  the  State's 
Attorney  for  the  jurisdiction  where  the  accident  happens  by  any  committee, 
arbitrator  or  referee,  and  an  appeal  shall  He  from  them  to  such  judge  on  a 
question  of  law  only,  and  his  decision  shall  be  final,  unless  reversed  on  appeal 
taken  in  accordance  with  appellate  practice  of  the  courts  of  the  state. 

The  services  of  a  medical  referee  may  be  utilized  in  all  arbitration  pro- 
ceedings under  regulations  made  by  the  Commission. 

The  cost  of  arbitration  proceedings  shall  be  in  the  discretion  of  the  com- 
mittee, the  arbitrator  or  the  referee,  respectively.  They  shall  not  exceed, 
however,  the  taxable  costs  for  similar  services  allowed  by  the  rules  of  court. 

Sec.  14.  Any  sum  awarded  as  compensation  under  this  Act  shall  be 
paid  on  receipt  of  the  person  to  whom  it  is  payable  under  any  agreement 
or  award;  and  in  case  of  the  death  of  the  person  injured  the  same  shall 
be  payable,  as  the  court  may  determine,  to  the  members  of  his  family  de- 
pendent upon  the  injured  at  the  time  of  his  injury,  namely,  the  widow  or 
husband,  as  the  case  may  be,  and  the  children,  or  if  no  widow  or  husband 
or  children,  the  parents  or  grandparents,  or  if  no  parents  or  grandparents, 
the  grandchildren,  or  if  no  grandchildren,  the  brothers  and  sisters. 


232  EMPLOYERS'  LIABILITY  COMMISSION 

Sec.  15.  All  proceedings  for  compensation  under  this  Act  shall  take  place 
in  the  judicial  district  where  all  the  parties  reside  unless  otherwise  pre- 
scribed by  order  or  regulation  of  the  Commission. 

Sec.  16.  Whenever  the  amount  of  compensation  under  this  Act  has 
been  ascertained,  or  any  weekly  payment  varied  or  redeemed,  or  any  other 
matter  decided  by  any  referee,  committee  or  arbitrator,  or  by  agreement,  a 
memorandum  thereof  shall  be  sent  by  said  referee,  committee  or  arbitrator, 
or  by  any  party  interested,  to  the  clerk  of  the  said  court  in  the  jurisdiction 
in  which  such  decision  was  rendered,  in  the  form  and  manner  prescribed 
by  such  court.  The  said  clerk  shall  forthwith  send  notice  thereof  to  the 
parties  interested,  and  shall  seven  days  after  the  sending  of  such  notice 
file  such  memorandum  and  register  it  without  fee  as  the  judgment  of  said 
court.  Such  memorandum  shall  thereafter  for  all  purposes  have  the  same 
force  and  effect  as  the  judgment  of  said  court. 

Provided,  That  the  judge  may  at  any  time,  on  evidence  proving  to  his 
satisfaction  that  any  agreement  as  to  the  redemption  of  a  weekly  payment 
by  a  lump  sum,  or  as  to  the  amount  of  compensation  payable  to  a  person 
under  legal  disability,  or  to  dependents,  was  inadequate,  or  was  obtained 
by  fraud  or  undue  influence  or  other  improper  means,  order  that  the  memo- 
randum be  not  recorded,  and  if  recorded,  he  may  order  the  record  to  be 
erased  within  six  months  after  it  has  been  so  recorded,  and  he  may  hear 
such  evidence,  take  such  proceedings,  and  make  such  order  as  will  effectuate 
the  purpose  of  this  Act. 

Sec.  17.  An  agreement  as  to  the  redemption  of  a  weekly  payment  by  a 
lump  sum,  or  as  to  the  amount  of  compensation  to  be  paid  to  a  person  under 
a  legal  disability  or  to  dependents,  if  not  registered  in  accordance  with  this 
Act,  shall  not,  nor  shall  any  payment  under  such  agreement,  exempt  the  per- 
son by  whom  the  compensation  is  payable  from  liability  to  pay  compensa- 
tion unless  he  prove  that  the  failure  to  register  was  not  due  to  any  neglect 
or  default  on  his  part. 

Sec.  18.  The  fees  of  any  attorney  or  other  representative  of  the  person 
to  whom  any  payment  is  made  under  this  Act  shall  be  determined  by  the 
Commission. 

Sec.  19.  No  payment  under  this  Act  shall  be  assigned  or  subject  to 
attachment  or  liable  in  any  way  for  any  debts. 

Sec.  20.  If  any  employer  becomes  bankrupt  or  insolvent  and  has  any 
insurance  against  his  liability  under  this  Act  to  any  employe  killed  or  in- 
jured, such  employe,  or  his  beneficiaries  hereunder  shall  thereupon  be  sub- 
rpgated  to  such  employer's  rights  and  remedies  therefor  under  such  insur- 
ance; and  if  the  employer  has  no  such  insurance,  or  such  insurance  is  insuf- 
ficient, any  amount  then  due  such  employes  or  such  beneficiaries  shall  have 
priority  over  all  other  claims  against  the  bankrupt  or  insolvent  estate. 

Sec.  21.  If  the  Commission  certifies  in  writing  that  any  scheme  of  com- 
pensation, benefit,  or  insurance  provides  scales  of  compensation  not  less  fa- 
vorable to  the  employes  and  their  dependents  specified  in  this  Act  than  the 
corresponding  scales  contained  in  this  Act,  or  is  on  the  whole  not  less  favora- 
ble to  such  employes  and  their  dependents  than  are  the  provisions  of  this  Act, 
and  that  where  the  scheme  provides  for  contribution  by  the  employes,  the 
scheme  confers  benefits  at  least  equivalent  to  those  contributions  in  addi- 


EMPLOYERS'  LIABILITY  COMMISSION  233 

tion  to  the  benefits,  or  the  equivalent  thereof  under  this  Act,  the  employer 
may  agree  with  any  of  his  employes  that  the  provisions  of  the  scheme  shall 
be  substituted  for  the  provisions  of  this  Act,  and  thereupon  the  employer  shall 
be  liable  only  in  accordance  with  the  scheme,  but  save  as  aforesaid  this  Act 
shall  apply,  notwithstanding  any  contract  to  the  contrary  made  after  the 
passage  of  this  Act.  No  scheme  shall  be  certified  which  contains  an  obliga- 
tion upon  the  employes  to  agree  to  it  as  a  condition  of  their  hiring,  or  which 
does  not  contain  provisions  enabling  an  employe  to  withdraw  from  the 
scheme.  Such  agreement  or  withdrawal  shall  be  in  writing  and  signed  by 
the  employe.  If  the  Commission  shall  at  any  time  find  that  the  scheme  no 
longer  fulfills  the  requirements  of  this  section,  or  other  reasonable  cause 
exists  for  so  doing,  they  shall  revoke  the  certificate.  When  a  certificate  is 
revoked  or  expires  any  moneys  or  securities  held  for  the  purpose  of  the 
scheme  shall,  after  due  provision  has  been  made  to  discharge  the  liabilities 
already  accrued,  be  distributed  as  may  be  arranged  between  the  employer 
and  his  employes,  or  as  may  be  determined  by  the  Commission  in  the  event 
of  a  difference  of  opinion. 

The  Commission  may  make  regulations  for  the  purpose  of  carrying  this 
section  into  effect. 

Sec.  22.  Nothing  in  this  Act  shall  affect  any  proceeding  for  the  recovery 
of  penalties  under  Safety  Appliance  and  other  enactments  relating  to  the 
safety  of  employes,  except  that  hereafter,  in  the  discretion  of  the  judge 
before  whom  the  penalty  is  enforced,  such  penalties  shall  be  payable  in 
whole  or  in  part  to  any  employes  injured  as  a  direct  result  of  the  absence 
of  the  appliance  for  which  such  proceedings  were  brought,  or  for  the  benefit 
of  the  family  of  any  employe  killed. 

Sec.  23.  There  is  hereby  created  for  the  purposes  of  this  Act  a  Com- 
mission of  Arbitration  and  Award,  which  shall  be  composed  of  three  Com- 
missioners, who  shall  be  appointed  by  the  Governor  by  and  with  the  advice 
and  consent  of  the  Senate.  The  Commissioners  first  appointed  under  this 
Act  for  the  purpose  thereof  shall  continue  in  office  for  the  term  of  two,  four 
and  six  years,  respectively,  from  the  first  day  of  July,  1910,  the  terms  of 
each  to  be  designated  by  the  Governor;  but  their  successors  shall  be  ap- 
pointed for  terms  of  six  years,  except  that  any  person  chosen  to  fill  a  vacancy 
shall  be  appointed  only  for  the  unexpired  time  of  the  Commissioner  whom 
he  shall  succeed.  Any  Commissioner  may  be  removed  by  the  Governor  for 
inefficiency,  neglect  of  duty,  or  malfeasance  in  office.  Not  more  than  two  of 
the  Commissioners  shall  be  appointed  for  the  same  political  party.  No 
vacancy  in  the  Commission  shall  impair  the  right  of  the  remaining  Commis- 
sioners to  exercise  all  the  powers  of  the  Commission. 

The  Commission  is  hereby  authorized  to  exercise  any  and  all  lawful 
powers  necessary  to  perform  the  duties  imposed  upon  it  by  this  Act,  and 
to  make  all  such  rules  and  regulations  not  otherwise  provided  for  as  they 
may  consider  necessary  to  carry  into  effect  the  purposes  thereof. 

The  Commission  shall  have  full  power  and  authority  to  investigate  acci- 
dents to  which  this  Act  applies,  to  administer  oaths,  and  require  the  attend- 
ance and  testimony  of  witnesses  and  the  production  of  any  evidence  relating 
to  such  accidents,  and  to  employ  agents  who  shall  have  like  power  or  author- 
ity. It  shall  be  the  duty  of  the  Commission  to  include  in  its  annual  report  a 


234  EMPLOYERS'  LIABILITY  COMMISSION 

list  of  all  accidents  and  a  full  report  in  detail  of  each  accident  investigated, 
to  require  from  employers  at  stated  intervals  returns  showing  amounts  of 
compensation  paid,  to  ascertain  the  means  adopted  for  the  prevention  and 
treatment  of  accidents  to  employes  covered  by  this  Act,  and  to  make  recom- 
mendations relative  thereto,  and  to  appoint  such  properly  qualified  medical 
practitioners  as  are  necessary  to  be  medical  referees  for  the  purposes  of 
this  Act,  to  remove  them,  and  to  determine  their  fees. 

Sec.  24.  This  Act  shall  not  apply  to  accidents  happening  to  seamen 
employed  on  vessels  of  the  United  States  engaged  in  navigation. 

Sec.  25.  This  Act  shall  take  effect  on  the  first  day  of  July,  1910,  and 
shall  not  apply  to  contracts  of  employment  made  before  that  date. 

A  TENTATIVE  BILL. 

The  principal  features  of  two  measures  given  above  were  amalgamated 
into  a  single  bill  and  formed  the  basis  of  work  for  the  labor  members  of  the 
Commission. 

The  printed  report  of  the  New  York  Commission  report  gives  the  remarks  of 
President  Samuel  Gompers  of  the  American  Federation  of  Labor  as  follows; 

Alderrnanic  Chamber,  City  Hall,  New  York,  Nov.  24,  1909.  Third  public 
session.  Chairman,  Senator  J.  Mayhew  Wainwright.  10  A.  M. 

Mr.  Samuel  Gompers,  Mr.  Chairman,  and  Gentlemen :  I  doubt  that  there 
is  much  division  of  opinion  in  our  day  as  to  the  advisability  of  having  com- 
pensation to  workmen  for  accidents,  to  take  the  place  of  the  old-time,  and 
even  present-time  liability  of  employers.  I  haven't  the  slightest  hesitation 
in  believing  and  saying  that  as  time  will  go  on  under  compensation  that  very 
much  better  results  will  be  achieved  in  the  diminution  in  the  number  of  acci- 
dents, as  well  as  vocational  diseases.  *  *  *  Simply  taking  cause  and  effect, 
I  would  like  to  supplement  an  expression  of  this  thought  upon  that  very  sub- 
ject. That  is,  that  annual  reports  under  the  operation  of  the  Compensation 
Act  of  Great  Britain  will  show  that  there  is  a  decrease  in  the  number  of 
accidents  year  by  year.  We  might  take,  for  instance,  that  if  there  was  entire 
absence  of  the  report  of  the  mortality  of  a  state,  and  then  suddenly  a  law  or 
an  ordinance  were  passed  requiring  reports,  and  reports  were  made,  it  would 
scarcely  be  a  fair  estimate  of  the  fact  of  mortality  to  say  that  during  the 
period  when  no  reports  were  necessary  people  didn't  die.  It  might  appear 
as  a  consequence  there  was  such  an  increase  in  the  number  of  deaths  because 
they  were  really  reported,  where,  as  a  matter  of  fact,  they  were  not  reported 
before. 

I  believe  in  compensation.  It  is  not  a  new  thought ;  but  I  want  to  express 
it,  that  it  is  not  for  the  sake  of  compensation,  but  rather  for  what  I  believe 
it  will  tend  toward  the  diminution  of  accidents  to  the  limit  of  human  in- 
genuity. 

During  a  four  months'  hurried  trip  through  Europe,  and  the  many  in- 
teresting things  I  saw,  none  of  them  impressed  me  so  much  as  the  museum 
at  Munich,  which  is  but  the  counterpart  of  similar  museums  in  several  parts 
of  Germany.  In  the  museum  I  visited  I  saw  the  safety  devices,  the  safe- 
guards against  accidents,  as  well  as  the  devices,  and  information  for  the  pro- 
tection of  health  and  better  sanitation.  From  the  machines  that  I  saw  in 
operation  it  was  practically  impossible  for  an  accident  to  occur  to  the  worker, 
unless,  perhaps,  the  building  itself  might,  cave  in.  *  *  * 


EMPLOYERS'JJABILITY  COMMISSION  235 

If  the  State  shall  determine  upon  compensation  and  the  better  protection 
of  life  and  limb  and  health,  it  would  make  for  a  very  much  better  state  of 
affairs.  I  am  very  much  in  sympathy  with  a  remark  made  by  Mr.  Mitchell 
the  day  before  yesterday  at  a  meeting  in  this  city  in  which  he  said  in  answer 
to  the  statement  that  employes  should  contribute  towards  the  insurance  or 
compensation.  His  statement  was  substantially  that  if  that  were  to  be  inaug- 
urated. It  would  not  increase  the  responsibility  of  the  employers,  and  it  would 
not  have  its  deterring -effect  in  preventing  negligence  and  accidents  which  are 
preventable.  But  if  such  a  system  were  introduced  he  believed  it  would  be 
an  element  of  justice  upon  which  insistence  ought  to  be  had;  that  where  em- 
ployers are  responsible  for  accidents  to  workers  through  their  own  negli- 
gence or  parsimony  they  ought  to  be  criminally  prosecuted  and  punished. 
Then,  and  then  only,  would  there  be  an  element  of  such  justice  before  him 
that  would  induce  him  to  take  all  precaution  he  could  in  order  to  prevent 
accidents.  *  *  * 

I  think  that  when  the  workmen  of  New  York  or  of  the  country  ask  for 
compensation  that  they  base  it  upon  the  thought  that  industry  or  society 
should  bear  the  cost,  and  that  they,  as  one  in  society,  if  it  be  in  taxation, 
would  bear  their  share  as  workers.  They  receive  in  wages  not  too  much — 
not  such  an  amount  as  to  warrant  their  contribution  to  a  special  fund  for 
that  purpose.  *  *  * 

I  do  not  think  that  (the  future  earning  power)  could  be  considered  in 
a  Compensation  Act.  I  doubt  it.  It  is  speculative  after  all.  *  *  * 

Chairman  Wainwright:  Mr.  Gompers,  I  would  like  to  ask  you  gen- 
erally as  to  whether  you  think  that  the  adoption  of  a  Compensation  Act 
in  this  State  on  the  lines  of  the  English  Act  would  be  advisable?  I  think 
that  the  adoption  of  a  Compensation  Act  would  be  advisable.  Can  you  sug- 
gest in  any  way — in  a  general  way — the  kind  of  an  Act  you  think  should 
be  adopted? 

Mr.  Gompers:     Not  now,  sir. 

CRITICISM  OF  THE  WORK  OF  THE  COMMISSION. 

During  the  public  discussions  several  labor  officials  and  attorneys  bitterly 
attacked  the  proposed  measure,  and  by  some  unforeseen  chance  selected  for 
attack  the  very  provisions  submitted  in  the  model  draft  officially  received 
from  President  Gompers  of  the  American  Federation  of  Labor.  Provisions 
incorporated  from  the  New  York  law  were  likewise  criticised,  and  in  an  effort 
to  clarify  the  atmosphere  Attorneys  Clarence  Darrow,  Daniel  L.  Cruice  and 
Henry  M.  Ashton  were  called  upon  by  the  labor  men  to  assist  them  in  an 
attempt  to  straighten  out  the  tangle.  A  meeting  was  held  in  the  office  of 
Mr.  Darrow  on  the  night  of  Thursday,  Sept.  1st,  at  which  were  present  the 
attorneys  mentioned  above,  all  the  labor  members  of  the  Commission  except 
Mr.  Boyle,  who  was  absent  from  the  city,  Mr.  John  Fitzpatrick,  president, 
and  Mr.  Edward  Nockels,  secretary  of  the  Chicago  Federation  of  Labor; 
Mr.  Daniel  Tobin,  international  president  of  the  Teamsters,  and  Mr.  William 
A.  Near  of  the  joint  council  of  Chicago  local  unions  of  teamsters.  Other  labor 
men  and  attorneys  had  been  invited,  but  were  unable  to  attend. 

Attorney  Cruice  had  been  furnished  one  of  the  first  drafts  of  the  tenta- 
tive bill  printed  and  had  been  consulted  almost  from  the  day  the  Commis- 


236  EMPLOYERS'  LIABILITYkCOMMISSION 

sion  was  appointed  by  the  Governor  as  the  questions  arose  in  the  minds  of 
the  labor  men.  The  secretary  of  the  Commission  had  called  upon  him  re- 
peatedly for  advice  and  counsel,  and  he  was  familiar  with  nearly,  if  not 
every  phase  of  the  work  of  the  Commission  from  labor's  standpoint. 

The  tentative  bill  had  not  been  agreed  to  in  any  particular  by  either 
the  employing  or  labor  members  on  the  Commission,  and  this  was  the  first 
joint  meeting  where  an  attempt  was  made  to  effect  an  understanding  as  to 
what  should  constitute  labor's  wishes.  Other  meetings  had  been  attempted 
but  failed. 

It  developed  early  in  the  meeting  that  while  the  proposed  measures 
offered  by  the  American  Federation  of  Labor,  the  New  York  law,  the  pro- 
posed Wisconsin  bill,  etc.,  might  be  considered  as  a  basis,  many  changes 
would  be  advisable.  Mr.  Criiice  led  a  general  discussion  on  the  subject  and 
offered  the  many  changes. 

A  stenographic  report  of  the  meeting  was  kept  and  at  the  next  meeting 
of  the  Commission  the  recommendations  offered  by  Attorneys  Darrow,  Criiice 
and  Ashton  were  offered  by  the  secretary.  The  Commission  authorized  a 
committee  consisting  of  the  chairman,  secretary  and  attorney  to  redraft 
the  bill.  The  revised  bill  was  an  attempt  to  meet  the  criticisms  offered 
by  the  attorneys  mentioned,  and  the  final  draft  of  the  measure,  given  in 
another  portion  of  the  report,  shows  nearly  all  of  the  suggestions  incorporated. 

At  a  meeting  held  in  the  Briggs  House  Friday  evening,  Sept.  2d,  called 
by  officers  of  the  Amalgamated  Association  of  Street  and  Electric  Railway 
Employes  the  pending  measure  was  discussed  at  length.  President  Wright 
of  the  State  Federation  attended  this  meeting  by  invitation.  International 
President  William  D.  Mahon  was  outspoken  against  any  compensation  meas- 
ure and  advocated  a  straight  employers'  liability  law.  Other  officers  of  the 
union  took  the  same  position. 

On  Saturday  afternoon,  Sept.  3rd,  a  meeting  of  the  Commission  was  held 
and  an  attempt  made  to  ascertain  the  wishes  of  the  interests  represented 
on  the  Commission.  Attorneys  Cruice,  Tone  and  Ashton  were  present  and 
a  lengthy  discussion  followed.  Attorney  Ashton  was  outspoken  in  his  advo- 
cacy of  a  compensatory  measure  as  against  a  liability  law. 

Attorney  Cruice  found  fault  with  the  terms  of  the  compensation  bill,  but 
expressed  himself  as  favoring  such  form  of  measure  if  the  terms  were  ade- 
quate. After  a  lengthy  discussion  Mr.  Cruice  said  he  would  give  the  matter 
further  study. 

THE  LAST  WORD. 

The  final  meetings  of  the  Commission  were  held  September  13th  and  14th. 
At  these  meetings  much  discussion  was  indulged  in  as  to  the  terms  and 
provisions  of  the  measure.  Two  of  the  labor  members  of  the  Commission 
refused  to  consider  any  other  plan  than  a  liability  bill.  Four  members  rep- 
resenting labor,  while  conceding  the  wisdom  of  a  compensation  enactment, 
were  unable  to  agree  with  the  members  representing  the  employers  as  to  the 
terms  of  the  bill.  The  reasons  given  and  points  of  difference  are  found 
elsewhere  in  the  report. 

A  business  meeting  was  held  September  15  for  the  purpose  of  winding 
up  the  affairs  of  the  Commission. 


BUREAU    OF 
LABOR    STATISTICS 

(The  left,  or  even  numbered,  pages  showthe  record  of  individual  cases 
referred  to  in  the  text  found  on  the  right,  or  odd  numbered,  pages.) 

nnnn 


The  first  work  of  the  Commission  in  its  effort  to  secure  accurate  data 
upon  which  to  frame  a  law  was  the  securing  of  reports  issued  by  the  various 
State  Departments. 

The  report  of  the  Bureau  of  Labor  for  the  first  six  months  of  1907,  the 
full  year  of  1908,  and  a  synopsis  for  1909,  gave  us  a  first  basis  for  compila- 
tion and  investigation.  Selecting  the  year  1908  (the  first  full  period  of  twelve 
months  during  which  the  State  attempted  to  keep  a  record  of  industrial  acci- 
dents), the  Commission  endeavored  to  locate  the  families  of  the  524  workers 
who  met  death  as  a  result  of  mishap  or  misadventure. 

Necessarily,  a  considerable  latitude  was  exercised,  as  fatalities  occurred 
in  this  year  when  the  primal  cause  may  have  originated  some  time  before. 
Again  the  industrial  depression  during  this  period  would  so  distort  the  per- 
spective as  to  give  rise  to  an  entirely  erroneous  conclusion.  The  first  six 
months  of  the  report— the  closing  half  of  1907— show  298  fatal  and  1,094  non- 
fatal  casualties.  The  year  1909,  when  industry  again  began  to  assume  its  nor- 
mal aspect,  shows  857  fatalities.  During  this  period  occurred  the  awful  catas- 
trophe at  Cherry,  in  which  258  men  lost  their  lives.  This  exceptional  case 
when  subtracted  from  the  total,  gives  us  an  increase  of  seventy-five  fatal  and 
131  non-fatal  accidents  over  the  last  given  year. 

A  reading  of  the  tables  submitted  herewith,  as  exemplifying  reports 
received  by  the  Bureau  of  Labor  Statistics,  leads  the  Commission  to  the  con- 
clusion that  not  all  industrial  accidents  are  reported  as  required  by  the 
statutes.  The  analysis  offered  reflects  a  certain  disregard  for  statutory 
requirements  of  this  nature. 

The  law  is  plainly  worded  and  explicit.  It  reads :  "That  it  shall  be  the 
duty  of  every  person,  firm  or  corporation  employing  laborers,  artisans, 
mechanics,  miners,  clerks,  or  any  other  servants  or  employees  of  any  character, 
to  make  report  to  the  State  Bureau  of  Labor  Statistics  of  every  serious  injury, 
entailing  a  loss  of  thirty  or  more  days'  time,  or  death  of  every  employee  caused 
by  accident  while  in  the  performance  of  any  duty  or  service  of  such  employer." 

In  this  connection,  it  is  exceptionally  worthy  to  note  that,  during  the 
period  this  law  has  been  in  force,  which  time  is  covered  by  the  report,  not  a 


238 


EMPLOYERS'  LIABILITY  COMMISSION 


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EMPLOYERS'  LIABILITY  COMMISSION  239 

single  accident  of  any  character  has  been  reported  to  the  Bureau  by  any 
farmer,  stock  raiser,  nor  from  any  agriculturist,  all  of  whom  are  more  or  less 
employers  of  laborers. 

It  is  worthy  of  note,  also,  that  of  the  524  fatal  accidents  given  for  the 
year  1908,  only  one  woman  was  killed  and  six  injured,  as  follows : 

"Margaret  Kelley,  aged  41  years,  employed  as  a  seamstress  at  the  Illinois 
Central  Railroad  station  in  Chicago.  While  preparing  her  lunch  July  14,  1908, 
using  an  alcohol  lamp,  it  exploded,  causing  her  death.  She  was  a  widow  and 
left  two  children  dependent. 

"During  the  year  six  girls  were  injured,  causing  a  loss  of  30  or  more  days' 
time ;  four  were  employed  by  manufacturing  establishments  and  two  by  steam 
railroads. 

"Those  employed  in  manufacturing  establishments  were:  January  3,  1908, 
Esther  Watson,  aged  19  years,  machine  feeder,  employed  by  the  Acme  Steel 
Goods  Co.,  Chicago,  had  a  finger  injured,  caught  in  a  machine;  January  31, 
1908,  Anna  Gerat,  aged  18  years,  machine  feeder,  employed  by  the  Illinois 
Match  Company,  Joliet,  had  her  head  injured,  her  hair  being  caught  by  the 
shafting." 

Steam  railroads  are  credited  with  218  fatal  accidents,  or  more  than  46  per 
cent  of  the  whole  number.  In  the  department  of  this  report  relating  particu- 
larly to  that  subject  the  analysis  shows  the  degree  of  hazard  by  occupations. 
The  men  in  the  operating  department  are  particularly  susceptible  to  injury  and 
of  all  railroad  callings  the  coupling  and  uncoupling  of  cars  appears  the  most 
dangerous. 

The  number  of  men  injured  in  railroad  service  for  the  year  numbered 
2,494,  or  more  than  31  per  cent  of  the  total  number  reported.  Another  report 
gives  us  106,017  employees  engaged  in  the  service,  and  of  these  20,385  were 
engineers,  firemen,  conductors  and  trainmen.  About  10  per  cent  of  such  work- 
men received  injury  during  the  period  given. 

Coal  miners  suffered  next  to  railroad  employees  in  number  and  effect  of 
industrial  mishaps.  Thirty-six  per  cent  .of  the  whole  number  of  fatal  accidents 
reported  to  the  Bureau  of  Labor  Statistics  were  credited  to  this  industry.  Non- 
fatal  accidents  are  given  as  792,  or  40  per  cent  of  the  total. 

The  remarkable  increase  of  casualties  among  building  tradesmen,  accord- 
ing to  the  reports,  from  seven  in  1908  to  sixty-nine  the  following  year,  would 
lead  us  to  believe  that  for  the  first  eighteen  months  of  the  operation-  of  the  law 
calling  for  reports,  little  attention  had  been  paid  to  it  by  building  contractors. 
It  was  during  this  period  the  great  crib  disaster  occurred  in  Chicago,  and  if 
these  cases  are  included  (the  Commission  has  only  a  synopsis  of  the  report 
for  1909)  then  this  portion  of  the  official  figures  for  Illinois  are  seriously  at 
fault.  The  coroner's  reports  indicate  a  very  different  view  of  this  industry. 

In  manufacturing,  one  man  was  killed  for  every  five  suffering  an  injury, 
which  necessitated  a  thirty-day  absence  from  employment.  The  year  1909 


240 


EMPLOYERS'  LIABILITY  COMMISSION 


SUMMARY  OF  FATAL  AND   NON^FATAL  ACCIDENTS,  SHOWING   NUMBER  OF 

CAUSES,  OCCUPATIONS  AND  EMPLOYERS,  WITH    PERCENTAGES  IN 

EACH   INDUSTRY,  JANUARY   I,  TO  DECEMBER  31,   1908. 


INDUSTRY. 

Number  of  Employers. 

FATAL 
ACCIDENTS. 

Number  of  Employers. 

NON-FATAL 
ACCIDENTS 

PER- 
CENTAGE, 

§ 

6 

« 

t 
1 

1 
"c" 

1 

I 

| 

B 

40.0 
20.2 

0  Q 

100.0 

Beef  Packing 

2 
88 
5 
29 
3 
5 
31 
2 
1 
4 
17 

3 

189 
7 
52 
6 
6 
218 
10 
2 
4 
27 

3 
29 

4 
29 
5 
2 
43 
7 
1 
3 
13 

3 

22 
4 
27 
6 
5 
34 
6 
2 
4 
11 

4 
129 

9 

88 

14 
997 
41 
505 

8 
56 
22 
23 

4 
41 
21 
90 

0.6 
36.0 
1.3 
10.0 
1.2 
1.2 
41.6 
1.9 
0.4 
0.7 
5.1 

Coal  Mining  

Contracting  

Manufacturing  

Railroading,  Elevated  
Railroading,  Interurban  
Railroading,  Steam  
Railroading,  Street  

5 
48 
4 
1 
1 
20 

6 
787 
47 
23 
24 
50 

5 
37 

14 

8 

7 
8 

4 
50 
11 
7 
11 
17 

Railroading,  Underground  
Stone  Quarrying  

Miscellaneous  

Totals   1908 

187 
135 

*524 

298 

139 
112 

124 

76 

309 
221 

f  2,494 
1,094 

188 
255 

256 
193 

100.0 

Totals,  1907,  six  months  
Total,  eighteen  months  

— 

822 

3,588 

*Thirty  of  the  number  killed,  occurred  in  1907.  One  in  beef  packing,  25  in  coal 
mining  and  4  in  the  miscellaneous  class. 

fOf  the  injured,  307  occurred  in  1907;  255  in  coal  mining,  13  in  contracting,  27  in 
manufacturing  and  12  in  the  miscellaneous  class. 

NUMBER   INJURED  AND  TIME  LOST,  BY  INDUSTRIES,  1908 


TIME 

LOST 

INDUSTRY 

Injured. 

Reported. 

Total 
Days. 

Average 
Number  of 
Days. 

Not 
Reported. 

Beef  Packing 

14 

3 

~~?  180' 

60 

11 

Coal  Mining 

997 

783 

32  213  J 

41 

214 

Contracting 

41 

11 

465 

42 

30 

Manufacturing    

505 

240 

11,228 

47 

265 

Railroading,  Interurban  

6 

2 

75 

37 

4 

Railroading,  Steam  

787 

434 

22,164 

51 

353 

Railroading  Street 

47 

44 

1,906 

43 

3 

Railroading,  Underground  
Stone  Quarrying 

23 
24 

21 

1,361 

65 

2 
24 

Miscellaneous 

50 

24 

731 

30 

26 

Totals.  .  . 

2,494 

1,562 

70,323 

045 

932 

0The  time  lost  (45  days  average)  is  only  approximately  correct  on  account  of  law 
regulating  reporting  of  accidents. 


EMPLOYERS'  LIABILITY  COMMISSION  241 

shows  a  decrease  in  this  proportion  and  with  the  enforcement  of  safety  regula- 
tions, as  provided  by  a  recent  statute,  the  number  of  workmen  injured  should 
be  materially  reduced. 

Three  hundred  and  twenty-four  married  men  met  their  death  and  left  584 
children  to  mourn  the  loss  of  a  father  during  the  year  1908.  About  the  same 
proportion  also  applies  to  non-fatal  accidents.  The  average  age  of  all  the 
killed  was  35  years. 

An  interesting  question  is  raised  as  to  whether  the  period  of  the  year  has 
any  bearing  on  the  accident.  The  Bureau  of  Labor  Statistics  gives  the 
following  analysis : 

"The  months  of  October,  November  and  December,  each  show  the  greatest 
number  of  fatal  accidents ;  combined  35  per  cent  of  the  fatalities  occurred  in 
these  three  months;  the  month  of  April  shows  the  smallest  number,  the 
average  is  43.7  for  each  month.  For  non-fatal  accidents,  March,  October  and 
November  show  the  greatest  number.  Eight  of  the  months,  January,  February, 
March,  August,  September,  October,  November  and  December,  each  show  over 
200  injured ;  the  average  for  each  month  was  208.  The  smallest  number  was 
reported  in  April." 

In  coal  mining,  the  O'Gara  Coal  Company,  Harrisburg,  reported  four- 
teen men  killed  at  its  mines  during  the  year;  this  is  the  greatest  number 
reported  by  any  employer  in  this  industry.  The  greatest  number  of  men 
injured,  reported  by  any  one  employer,  was  sixty-three  reported  by  the 
Spring  Valley  Coal  Company,  Spring  Valley ;  however,  this  company  reported 
only  four  men  killed.  The  Dering  Coal  Company,  Westville,  reported  54 
injured  and  eight  killed. 

In  manufacturing  establishments,  the  Illinois  Steel  Company,  Chicago 
and  Joliet,  reported  16  killed  and  99  injured ;  these  are  the  greatest  numbers 
reported  by  any  one  concern  in  this  class.  However,  the  International 
Harvester  Company,  Chicago,  reported  three  killed  and  ninety  injured. 
These  two  employers  represent  36.6  per  cent  of  the  killed  and  37.4  per  cent 
of  the  injured  in  the  manufacturing  industry. 

In  steam  railroading,  the  Chicago  &  Northwestern  road  reported  37 
employes  killed  and  111  injured ;  the  Chicago,  Burlington  &  Quincy,  27  killed 
and  176  injured ;  the  Illinois  Central,  24  killed  and  152  injured ;  the  Wabash, 
14  killed  and  23  injured;  the  Chicago  &  Eastern  Illinois,  16  killed  and  one 
injured.  These  five  roads,  out  of  the  31  roads  reporting,  account  for  118 
killed,  or  54.1  per  cent  of  the  whole  number  reported  by  steam  roads.  The 
same  roads  reported  as  seriously  injured  463,  or  58.8  per  cent  reported  by 
all  roads  of  this  class. 

It  may,  perhaps,  be  fair  to  conclude  that  the  roads  named  had  in  their 
employ  by  far  the  greatest  number  of  men,  and  that  therefore  the  danger 
or  peril  of  death  and  injury  would-be  proportionately  increased.  This 
theory  may,  however,  prove  to  be  entirely  erroneous.  A  case  in  point  is 
that  of  the  Chicago  &  Eastern  Illinois  Railroad,  which  has  568  miles  of 


242 


EMPLOYERS'  LIABILITY  COMMISSION 


CONJUGAL  RELATIONS,  FATAL  AND  NON-FATAL  ACCIDENTS,   1908 


INDUSTRY 

w 

1 

;! 

FATAL  ACCIDENTS 

"o 

I 

£ 

NON-FATAL  ACCIDENTS 

Families 

Depend- 
ents 

Families 

Dependents 

1 

i 

o3 

1 

*$. 

1 
o 

.1 

£ 

"4 
2 

I 

I 

I 

6 

1 

1 

£ 

M 
& 

Beef  Packing 

3 

189 
7 
52 
6 
6 
218 
10 
2 
4 
27 

524 

2 
111 
5 
37 
2 
2 
138 
5 
1 
3 
17 

323 

1 

78 
2 
15 
4 
4 
80 
5 
1 
1 
10 

201 

2 
111 
5 
37 
2 
2 
138 
5 
1 
3 
17 

323 

2 
221 
9 
99 
7 
2 
190 
13 
2 
2 
37 

584 

4 
332 
14 
136 
9 
4 
328 
18 
3 
5 
54 

14 
997 
41 
505 

5 
532 
24 
301 

9 
465 
17 
204 

5 
1,207 
10 
566 

10 
1,739 
34 
867 

ii 

8 

Coal  Mining 

Contracting 

Manufacturing 

Railroading,  Elevated.  ;  .  . 
Railroading,  Interurban  .  . 
Railroading,  Steam.  
Railroading,  Street  

'20 
1 

"3 

6 
787 
47 
23 
24 
50 

6 
510 
30 
12 
19 
16 

"277 
17 
11 
5 
17 

8 
634 
74 
13 
15 
22 

14 
1,144 
104 
25 
34 
38 

38 
7 
1 

65 

Railroading,  Underground 
Stone  Quarrying  

Miscellaneous  
Totals  

907 

30 

*2494 

1,455 

1,022 

2,554 

4,009 

*Conjugal  relations  not  reported,  17. 


CLASSIFIED  AGES  OF  THE  WORKMEN  KILLED  FOR  THE  YEAR  ENDING 
DECEMBER  31,   1908 


CLASSIFICATION  OF  AGES 

CONJUGAL 
RELATIONHIP 

o 

. 

. 

INDUSTRY 

1 

c 

i 

c 

~a 

c 

1 

1 

a 

| 

ti 

1 

e? 

P 

p 

p 

ju 

£D 

£3 

o 

0) 

-1 

1 

3 

1 

1 

PQ 

~3 

3 

PQ 

•3 

PQ 

^ 

H 

S 

'5 

4 

1 

S 

% 

S 

8 

§ 

T? 

s 

s 

g 

1 

-< 

2 

a 

Beef  Packing 

1 

2 

3 

33 

2 

1 

Coal  Mining  

b18 

25 

34 

26 

29 

21 

1? 

10 

25 

4 

189 

34 

111 

78 

Contracting  

1 

1 

1 

1 

2 

1 

7 

36 

5 

2 

Manufacturing  

r,? 

6 

8 

6 

13 

5 

4 

6 

1 

h! 

36 

37 

15 

Railways,  Elevated  

3 

1 

1 

1 

6 

31 

2 

4 

Railways,  Interurban.  . 

1 

2 

1 

6 

98 

2 

4 

Railways,  Steam 

r!5 

?Q 

43 

34 

2.3 

19 

18 

1? 

35 

138 

80 

Railways,  Street        

1 

3 

5 

jl 

10 

38 

5 

5 

Railways,  Underground  

1 

1 

2 

35 

1 

1 

Stone  Quarrying  

1 

1 

2 

4 

28 

3 

1 

Miscellaneous  

el 

2 

6 

3 

4 

6 

... 

1 

2 

k2 

27 

36 

17 

10 

Totals                   .  .    . 

a26 

69 

99 

79 

80 

58 

37 

37 

60 

f!4 

524 

35 

323 

120 

1  a  Four  17;  eleven  18;  eleven  19.  b  Two  17;  six  18;  ten  19.  c  One  17;  one  18. 
d  Four  18;  one  19.  e  One  17.  f  Three  60;  one  61;  three  62;  two  63;  one  64;  two  65; 
one  68;  one  72.  g  Two  62;  one  63;  one  65.  h  one  65.  i  Three  60;  one  63;  one  64; 
one  72.  j  one  68.  k  One  61;  one  62. 


EMPLOYERS'  LIABILITY  COMMISSION  243 

tracks,  traversing  almost  the  entire  length  of  the  State,  yet  it  reports  16 
killed  and  only  one  man  injured,  his  occupation  given  as  a  laborer. 

Several  of  the  roads,  it  will  be  noticed,  reported  no  employes  killed, 
but  quite  a  number  injured.  Some  of  these  are  the  Iowa  Central  road, 
with  13  injured;  the  Elgin,  Joliet  &  Eastern,  12  injured;  the  Chicago,  Lake 
Shore  &  Eastern,  10  injured.  Several  other  roads  reported  lesser  numbers 
injured,  but  none  killed.  Three  roads,  the  Chicago,  New  York  &  Boston, 
East  St.  Louis  Connecting  and  Granite  City,  Alton  &  Eastern,  each  reported 
one  employe  killed,  but  none  injured. 

In  the  miscellaneous  class  of  employes  the  Chicago  Reduction  Company 
reported  10  killed,  which  is  37  per  cent  of  the  total  number  in  that  class; 
this  company  reported  only  three  injured. 

The  table  showing  the  character  of  non-fatal  injuries,  classified  by 
industries,  shows  the  particular  part  or  parts  of  the  body  injured,  also  the 
characterization  of  the  injuries  under  four  headings,  of  the  2,494  workmen 
injured ;  200,  or  8  per  cent,  had  members  of  the  body  amputated  or  destroyed ; 
682,  or  27.4  per  cent,  suffered  broken  bones ;  of  these  382,  or  56  per  cent,  were 
broken  arms  and  legs ;  83,  or  3.3  per  cent  were  more  or  less  severely  burned 
on  arms,  bodies  and  faces;  1,529,  or  61.3  per  cent  of  the  whole  number 
endured  injuries,  some  of  which  are  of  such  serious  character  that  final 
recovery  is  doubtful,  and  even  should  restoration  to  health  follow,  the 
injured  may  be  crippled  for  life. 


The  table  giving  the  nationality  of  workmen  injured  during  the  year 
1908,  shows  twenty-seven  countries  represented.  Of  the  whole  number  1,098, 
or  44  per  cent,  are  Americans ;  four  other  nationalities,  representing  the  larger 
numbers,  are:  Austrian,  104;  Germans,  242;  Italians,  275;  Poles,  200;  mak- 
ing a  total  of  821,  or  32.9  per  cent.  These  five  nationalities  therefore  repre- 
sent 1,919,  or  76.9  per  cent  of  the  injured,  leaving  575,  or  23.1  per  cent, 
distributed  among  the  twenty-two  other  nationalities. 

In  coal  mining  36.8  per  cent  were  American  born,  while  21.3  per  cent 
were  of  Italian  birth,  leaving  41.9  per  cent  represented  by  25  nationalities. 
Taking  all  of  the  injured  shown  in  the  railway  service,  64.5  per  cent  were 
Americans,  and  in  steam  railway  service  alone  66.6  per  cent  were  of 
American  birth. 

Another  shows  by  industries  the  number  injured  and  the  time  lost  by 
those  for  whom  report  was  made  being  only  about  three-fifths  of  the  total 
number.  The  average  days  lost  was  45  for  those  reported,  which  is  only 
approximately  correct;  the  law  requires  that  reports  of  these  accidents  shall 
be  made  within  thirty  days  from  the  date  of  the  injury,  consequently  when 
the  employer  makes  such  report  the  person  injured,  in  many  cases,  may 
not  have  fully  recovered,  and  only  an  estimate  can  be  made  of  how  long  a 
time  will  elapse  before  recovery. 


244 


EMPLOYERS'  LIABILITY  COMMISSION 


CLASSIFICATION   OF  AGES  AND   CONJUGAL  RELATIONS  OF   THE   WORKMEN 

INJURED/ RESULTING  IN  THE  LOSS  OF  THIRTY  DAYS  OR  MORE 

TIME    FOR    THE    YEAR    ENDING'   DECEMBER   31,  1908 


INDUSTRY 

Under  20. 

a 

1 

U-> 

-g 
« 
8 

25  But  Under  30. 

30  But  Under  35. 

35  But  Under  40- 

$ 

1 
-5 
§ 

2 

107 
2 
55 

1 

79 

8 

1 
7 
4 

45  But  Under  50- 

£ 

1 
P 

» 
S 

'si 

3 
22 

30 

5 

"2 
2 

55  But  Under  60. 

GO  and  Over 

« 
1 

21 

J 

1 

<! 

34 
34 
36 
33 

32 
34 
37 

30 
36 
33 

CONJUGAL 
RELATIONS 

! 

•a 
I 

Beef  packing  
Coal  mining  
Contracting  

3 

78 
1 
34 

2 
175 
5 
89 

1 
127 
5 

6 
3 
11 

1 
173 
5 
92 

2 
171 
3 

•6 
4 
3 

2 
131 

5 

72 

132 
9 

3 
1 
5 

109 
10 

68 

2 
121 
6 

6 
6 
4 

2 

86 
8 
35 

57 
9 

1 
1 
2 

41 
1 
20 

17 

2 

82 

25 

1 
18 

14 
997 
41 
505 

6 

787 
47 

23 
24 
c50 

5 

533 
24 
301 

6 
510 
30 

12 
19 
16 

9 

465 
17 
204 

277 
17 

11 
5 
17 

Manufacturing  .  . 
Railways,    inter- 
urban  .... 

Railways,  steam. 
Railways,  street  . 
Railways,  under- 
ground   
Stone  quarrying. 
Miscellaneous.,.  . 

Totals  

24 
3 

29 

* 

14 

a  143 

424 

460 

360 

332 

266 

201 

115 

b76 

35 

c2,494 

34 

1,455 

1,022 

a  One  13;  two  14;  five  15;  nineteen  16;  thirty-two  17;  thirty-six  18;  forty- 
eight  19. 

b  Eighteen  60;  three  61;  eight  62;  five  63;  eight  64;  eleven  65;  three  66;  three 
67;  four  68;  one  69;  five  70;  three  72;  one  73;  one  75;  one  77;  one  81. 

c  Seventeen  conjugal  relations  not  reported. 


NON-FATAL  ACCIDENTS,  NUMBER  INJURED  AND  CHARACTERIZATION 
OF  INJURIES,  1908 

CHARACTER  OF  INJURIES 


BrJiiUJriu  rani  uv  rJUJJi 
INJURED 

Amputated. 

Broken. 

B-ned.         ™ously 

Total. 

Head  and  Face 

33             101 

134 

Skull  and  Scalp. 

25 

...               9 

34 

Eyes  

*19 

1          54 

73 

Nose  and  Jaw  

15 

3 

18 

Neck  and  Ears  

1                 2 

3 

Spine  and  Back  
Body. 

3 

145 
32              108 

148 
140 

Shoulder  and  Collar  Bone  
Hip,  Groin  and  Side  

34 

74 
96 

108 
96 

Ribs  . 

62 

62 

Abdomen             .    . 

1 

1 

Rupture  and  Internal  Injury  
Arms  
Wrist  and  Elbow  
Hand  and  Fingers  
Legs  

21 

108 
21 

t9 
102 
24 
42 
280 

7 
17               49 
25 
274 
171 

16 
189 
49 
424 
472 

Knee  and  Ankle 

30 

162 

192 

Feet  

31 

56 

248 

335 

Total... 

200 

682 

83           1,529 

2,494 

*Eye  destroyed. 


fBlood  vessel  burst ed. 


EMPLOYERS'  LIABILITY  COMMISSION 


245 


CLASSIFICATION  OF  THE  CHARACTER  OF  NON-FATAL  INJURIES  SUSTAINED, 
SHOWN  BY  INDUSTRIES,  FOR  YEAR  ENDING  DECEMBER  31,  1908 


CLASSIFICATION  OF  THE 
NATURE  OF  THE 
INJURIES 

Totak 

INDUSTRY 

.1 
1 

1 

iS 

be 

.3 

| 

£ 

,1 
II 

«r 

09 

•f 

1 

CQ 

I 

K 

A 

I*3 

Of 

§ 

1 

3 

Abdomen  injured  
Ankles  broken  
Ankles  injured 

1 

30 
111 
21 
102 
17 
49 
3 
145 
1 
32 
108 
34 
1 
6 
19 
54 
33 
16 
29 
191 
13 
86 
34 
131 
10 
112 
85 
7 
73 
7 
10 
51 
21 
280 
171 
2 
8 
62 
8 
9 
74 
23 
25 
12 
39 
18 
77 
24 
19 

1 

6 
52 
19 
35 
4 
23 
2 
38 
1 

15 
38 

1 
2 

5 
15 
2 
23 
5 
8 

2 
2 

1 
2 

2 

1 
2 







Arms  broken  
Arms  burned 

2 

37 
6 
13 

1 
89 

3 

1 

Arms  injured  

1 



1 

1 

Backs  broken  
Backs  and  spines  injured 
Blood  vessel  bursted  .  .  . 
Bodies  burned 

1 

10 

2 

3 

2 

1 

17 
50 
16 



7 
7 
3 

"2 

5 

38 
9 
1 

3 

4 

4 
•      2 

..'... 

3 
3 

Bodies  injured 

Collar  bone  broken.  



4 
6 
26 
2 
2 
7 
34 
3 
47 
13 
48 
2 
29 
12 
2 
3 

2 
4 
12 
8 
6 
9 
52 
10 
18 
13 
39 
7 
27 
22 
3 
23 
4 
3 
29 
16 
60 
40 





...... 

2 

i 
1 

6 

7 
22 
5 
13 

84 

1 
4 

"  i 
'"4 

i 

Eyes  injured  :  . 

2 

2 

F&C6S  injured 





1 





Feet  injured.  

3 

7 

2 

5 

1 

14 
4 
33 

"45 
42 
2 
41 
2 
5 
13 
2 
166 
82 
1 
5 
20 
1 
3 
29 
10 
8 
2 
3 
8 
24 
7 
6 

3 
2 
3 

1 

2 
.... 

1 
2 
1 

Fingers  injured  
Hands  amputated  
Hands  injured  
Heads  injured 

2 
1 
1 

1 

2 



3 
3 

1 

3 
2 

3 
3 

4 

1 

1 

"2 
2 

2 

7 
3 
35 
34 
1 
2 
6 
1 

Knees  injured  
Legs  amputated  
Legs  broken  

i 



1 

3 

5 

7 

.... 

.... 

9 
4 

Necks  injured  
Noses  injured  

1 
31 
3 
5 
30 
11 
6 
2 
10 
6 
26 
7 
8 

1 
"4 

2 

"  1 

1 

2 

1 

Ruptured  



i 

Scalps  injured  
Shoulders  injured  
Sides  and  Groins  injured 
Skulls  broken 

8 
1 
10 
8 
22 
4 
24 
8 
4 

"  i 

1 
1 

1 

1 



2 

"  1 

Thumbs  amputated.  .  .  . 
Thumbs  injured 

Toes  amputated  
Toes  injured  
Wrists  broken  
Wrists  injured  

Totals  



1 

4 

'  1 

2,494 

14 

997 

41 

505 

6 

787 

47 

23 

24 

50 

246 


EMPLOYERS'  LIABILITY  COMMISSION 


SHOWING  THE  NATIVITY  OF  THE  EMPLOYES  INJURED  DURING  THE 
YEAR  ENDING  DECEMBER  31,  1908. 


NATIONALITY 

Beef  Packing. 

Coal  Mining. 

! 

Manufacturing. 

Railways, 
Interurban. 

Railways,  Steam. 

Railways,  Street. 

Railways, 
Underground 

Stone  Quarrying. 

ir. 

s 

American  
Austrian. 

2 

367 
36 

11 

131 
54 

5 

524 
10 

11 
3 

17 

1 

30 

Belgian 

3 

2 

Bohemian  

1 

14 

2 

5 

5 

2 

7 

1 

Canadian 

1 

2 

2 

1 

Danish           .    . 

1 

1 

1 

1 

English 

40' 

9 

17 

1 

Finlander 

2 

French 

19 

4 

5 

1 

German    and 
Hollander. 

1 

78 

9 

76 

63 

5 

4 

6 

Greek 

1 

4 

10 

1 

H  ungari  an 

9 

1 

14 

• 

5 

Irish  

1 

20 

5 

10 

1 

38 

5 

3 

3 

Italian  

212 

2 

21 

31 

9 

Lithuanian  
Macedonian 

1 

46 

1 

9 
1 

5 
3 

1 

Mexican 

2 

Norwegian 

4 

2 

3 

Polander  
Roumanian 

8 

46 

6 

85 
3 

36 
1 

2 

12 

5 

Russian.         .    . 

38 

15 

1 

1 

1 

Servian. 

3 

9 

1 

Scotch 

16 

6 

3 

Slav  

29 

6 

3 

Swede 

11 

4 

33 

19 

6 

3 

Turk 

1 

Welsh  

3 

Total  

14 

997 

41 

505 

6 

787 

47 

23 

24 

50 

EMPLOYERS'  LIABILITY  COMMISSION 


247 


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**Pittsburg  liabilil 
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***See  page  36  of 

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